There’s been a lot of talk about hearsay and President Donald Trump’s impeachment. The trial resolution passed by the Senate in the wee hours of Jan. 22 states that the House impeachment inquiry record “will be admitted into evidence subject to any hearsay … objections that the President may make after opening presentations”.
The House record itself is hearsay. But it could be admitted into evidence under the Rule 803(8) public records exception; to exclude it would require President Trump to show that it lacked trustworthiness as a description of the House inquiry’s actual contents. I’ll simply assume the admissibility of the House record for the balance of my discussion.
The primary question I ask is: How big an issue is it that the Senate will allow hearsay objections as a basis to exclude evidence from the record? If the Senate follows the Federal Rules of Evidence (FRE)—the most natural course of action—then the issue may be at most a minor annoyance for the House managers.
As a general matter, hearsay is an out-of-court statement offered to prove the truth of what the statement asserts (see FRE Rule 801(a)-(c)). For example, if Willy testifies that Heather told him she saw Dave do murder, Willy’s testimony about Heather’s statement is hearsay. We exclude hearsay from court proceedings because the person who made the out-of-court statement—in this example, Heather—wasn’t available for cross-examination at the time she made the hearsay statement. (Notice that hearsay law isn’t worried about Willy’s reliability, because he’s a witness on the stand, available for cross-examination; in addition, he’s under oath, which is supposed to mean something in our legal and constitutional system.) So, Heather’s statement to Willy would be hearsay and presumptively inadmissible—unless one of the enormous number of hearsay exceptions applied.
Although the FRE do not as a rule apply to impeachment trials, they were adopted and have been interpreted for deliberate and widely accepted reasons. To be sure, it might be more reasonable to allow hearsay in an impeachment trial than in an ordinary one; many Senators went to law school, so arguably they’re more able than ordinary jurors to account for hearsay statements’ unreliability. Certainly, there’s no obvious reason why hearsay exclusions should be wider in an impeachment trial than in an ordinary one.
But even applying the same rules in the Trump impeachment trial as in an ordinary one, many important statements at issue are either not hearsay at all or admissible under one of the myriad hearsay exceptions. Let’s consider some examples.
- State Department aide David Holmes testified that while he was sitting in an outdoor restaurant with Ambassador Gordon Sondland in Kiev, Sondland called Trump on his cell phone. Here’s what the House managers’ trial brief describes Holmes as testifying to: President Trump asked Ambassador Sondland whether President Zelensky was “going to do the investigation.” Ambassador Sondland stated that President Zelensky was “going to do it” and would “do anything you ask him to.”
Holmes testified to out-of-court statements by both Trump and Sondland, but neither is hearsay under the FRE.
Trump’s question for Sondland does include the implicit statement that Zelensky had been asked to “do the investigation” of the Bidens. But even if Trump’s question were offered to prove that implicit statement, it’s not hearsay because it would be offered against Trump, who’s a party to the case. Under Rule 801(d)(2)(A), a defendant’s own statement, offered against that defendant, just isn’t hearsay.
But Sondland isn’t the defendant here, so why isn’t his statement hearsay? Under Rule 801(d)(2)(E), statements of a party’s co-conspirator are treated like a party’s own statements, if the statements were made in furtherance of a conspiracy. If Sondland was involved in Trump’s scheme to use military aid and the promise of a White House meeting to pressure Zelenskyy to commit to investigations meant only to bolster Trump’s political interests, then Sondland’s statement would be in furtherance of that conspiracy. And under the FRE, the statement itself may be used to help prove the conspiracy existed. Although other evidence would also be necessary to prove there was a conspiracy, under the FRE that other evidence could include hearsay (because “the existence of a conspiracy and [a party’s] involvement in it are preliminary questions of fact that, under Rule 104, must be resolved by the court,” Bourjaily v. United States 483 U.S. 171, 175 (1987)). All of this suggests virtually anything Sondland said while trying to effect Trump’s scheme would be admissible under Rule 801(d)(2)(E).
- The summary of the July 25 call between Presidents Trump and Zelenskyy.
People put together the July 25 call summary, so the summary involves their implied statement, “This is what was said on the call.” That implied statement looks like hearsay: It’s an out-of-court statement offered for the truth of the matter asserted—namely, that the call summary really summarizes the call’s contents.
But in this case, the summary actually isn’t hearsay.
Under Rule 801(d)(2)(B), a statement offered against a party isn’t hearsay if it’s one the party “manifested that it adopted or believed to be true.” Trump personally declassified the call summary, which is currently posted on the White House website, and he’s repeatedly referred to it approvingly. Thus the implied statement, “This is what was said on the call,” isn’t hearsay when the summary is offered against Trump, because the president has manifested that he adopts it and/or believes its contents to be a true recounting of what happened.
- “I want you to do us a favor, though.”
That’s what President Trump said to Ukraine President Zelenskyy, according to the White House’s call summary. This statement isn’t hearsay because it’s Trump’s own statement offered against him—it’s another Rule 801(d)(2)(A) example.
- Rudy Giuliani’s letter to President Zelenskyy.
In a letter to Zelenskyy, Giuliani wrote: “I represent [President Trump] as a private citizen, not as President of the United States,” and that he was contacting Zelenskyy with Trump’s “knowledge and consent.” This evidence goes to the allegation that the president abused his office’s foreign policy powers by acting only in his own personal interests.
Giuliani’s a non-party, and after the letter’s public release, Trump stated he didn’t know about it, so Rule 801(d)(2)(A) and (B) are out. But as the president’s personal attorney, Giuliani is Trump’s agent. Under Rule 801(d)(2)(D), statements made by an agent when carried out within the scope of the agency relationship aren’t hearsay when offered against the agent’s principal—Trump, in this case. A letter from a lawyer pursuing the client’s interests is presumptively within the scope of the agency relationship. That Giuliani wrote at the time that he was acting with Trump’s “knowledge and consent” is powerful evidence that he was in fact acting within that scope. And although the “knowledge and consent” statement is itself hearsay, under the FRE it may be used to establish the scope of the statement about private representation.
So, under Rule 801(d)(1)(D), Giuliani’s entire letter should be admissible for the truth of what it asserts. Ditto other Giuliani statements—e.g., that what he was doing “isn’t foreign policy” and that he was seeking information that “will be very, very helpful to my client” (Giuliani added that such information “may turn out to be helpful to my government,” which contrasts to the use of “will” with respect to “my client,” Trump; emphasis added).
- Testimony by Fiona Hill about John Bolton’s reference to “whatever drug deal Sondland and Mulvaney are cooking up.”
Fiona Hill, deputy to National Security Advisor John Bolton, told the House that after a July 10 meeting in which Sondland referred to the alleged quid pro quo demanded of Zelenskyy, Bolton pulled her aside and said, “go and tell [the NSC Legal Advisor] that I am not part of whatever drug deal Sondland and Mulvaney are cooking up on this.”
The testimony as to Bolton’s now-famous “drug deal” statement might be admissible even though it is, in fact, hearsay if offered for the purpose of proving that the “deal” was abusive. If Bolton made the statement while in an excited state related to things Sondland had just said or done—easy to believe based on Hill’s testimony—then it’s admissible under the Rule 803(2) excited utterance exception to the general rule against admitting hearsay. (As the Committee that drafted the original version of the FRE described the basis for this exception, the theory behind it is that “circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication”.)
- Bolton hearsay statements, in general.
Bolton has said he’ll testify if the Senate subpoenas him. If he did testify, he would be able to provide his firsthand knowledge of relevant events, eliminating any need to admit his hearsay statements testified to by others, such as Hill. Thus, if Senate Republicans are worried about the unreliability of Bolton’s out-of-court statements to others, they have it within their power to address that concern by allowing his testimony at the Senate trial.
But what if senators refuse to subpoena Bolton, and he refuses to testify voluntarily, or the Senate refuses to let him?
This raises an important hearsay-ban exception, involving “unavailable” declarants. Under Rule 804(a)(5), Bolton would be unavailable if the House managers were not able, “by process or other reasonable means, to procure: (A) the declarant’s attendance.” If the Senate refuses to subpoena Bolton, or even listen to his voluntary testimony, then the managers indeed would not have been able to procure his attendance. Under the FRE, the argument that the House should have subpoenaed Bolton for testimony to the House would hold exactly zero water, because “attendance” in Rule 804(a)(5)(A) refers to attendance at the trial—which is where the House managers want Bolton to testify. Thus, if the Senate won’t compel or allow Bolton’s testimony, he is unavailable under Rule 804(a)(5)(A).
To admit Bolton’s hearsay statements under the FRE requires more than just that, though. The statements must also fit an exception under Rule 804(b). They arguably fit Rule 804(b)(6), which applies when a party “wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.” I’m not an expert on executive privilege or immunity, but plenty who are have given reasons to view as unsupportable Trump’s arguments for instructing staffers, including Bolton, not to testify. In context, unsupportable legal arguments arguably are a wrongful cause of Bolton’s unavailability.
If that is right, Bolton’s hearsay statements offered against Trump should be admissible under Rule 804. But again, senators worried about hearsay and reliability can avoid the entire issue by simply having Bolton testify.
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I’ve barely touched on the many important nuances to hearsay law, but the take-home point is clear: Much important evidence against Trump isn’t hearsay, or would be admissible in an ordinary court of law under some exception anyway.
Image: Sen. Lindsey Graham (R-SC), Sen. Roy Blunt (R-MO), Supreme Court Chief Justice John Roberts and Sen. Pat Leahy (D-VT) arrive to the Senate chamber for impeachment proceedings at the U.S. Capitol on January 16, 2020 in Washington, DC. Photo by Drew Angerer/Getty Images