Over the next several days, the Senate will (potentially) be voting on whether to subpoena individuals to testify in the impeachment trial of President Donald J. Trump. With the caution that an impeachment trial is not quite like a regular trial that you would see if you headed to your local courthouse, the following are some terms that you may hear from Senators and talking heads during this discussion.
Subpoena — Stripped of its fancy title, a subpoena is an order to a person to appear in court to testify or to turn over documents to the parties. In most courts, subpoenas issue upon request by a party almost automatically. If there is a reason why that subpoena is improper, the witness can ask to “quash” (effectively cancel) the subpoena or one of the other parties can ask to exclude the witness. For an impeachment trial, because the Senate is both judge and jury, the Senate needs to approve the subpoena.
Deposition — A deposition is out-of-court testimony. The attorneys for the witness get to ask questions just like it was in court and a court reporter takes down the questions and answers. The court reporter then prepares a transcript (a printed booklet containing all of the questions and answers, word for word). Often depositions are used either to discover what a witness might say or because the witness is not available for trial. (Typically, depositions are used for medical witnesses who can make time available after work for a deposition but would be unable to wait in court for their turn to testify without putting patients at risk.) A deposition also allows parties to decide what part of a witness’s testimony they actually want to use.
Relevance — This is a really big concept for all evidence. Evidence is only allowed if it is relevant. Relevance has two distinctly different components. The first component is whether the evidence tends to prove the allegations at the center of the case. In the case of the impeachment of President Trump, the issues are: 1) whether he improperly asked for Ukraine to investigate his political opponents and withheld various benefits (aid and a presidential meeting) until Ukraine agreed to conduct the investigation; and 2) whether he obstructed the House’s investigation of this matter. If the impeachment trial was being tried in a regular court, most judges would exclude any questions to Hunter Biden about his business dealings in the Ukraine because whether Trump’s suspicion that there was dirt that the Ukraine might uncover about Hunter Biden is accurate does not tend to prove or disprove whether Trump made the request. The second component is whether the evidence is more likely to distract from the key issues in the case than aid in resolving those issues. This second component is the tougher issue in most trial because it is about balancing how much evidence proves/disproves the central facts against how much it is a red herring. For example, in the typical criminal case, while a defendant’s past in some ways proves whether they are likely to commit a certain type of a crime, such evidence is considered irrelevant because it focuses the juror’s attention on whether the defendant committed a crime in the past rather than on whether the defendant committed the crime charged.
Hearsay — This is a legal concept that both attorneys and judges regularly screw up. The legal definition is that it is testimony about a statement made by somebody other than the witness if the value of that testimony depends upon the truthfulness of the statement by the non-testifying person. If what matter is that the statement was made rather than the honesty of the statement, then it’s not hearsay. There are also a long list of exceptions in which the hearsay is allowed because it is made in circumstances in which the statement is normally true. For example, for the most part, a witness can testify about their age, their relatives, etc., because while you do not have any personal memory of being born or when your siblings were born, most families are honest about that type of thing.
In this case, hearsay is the tricky thing. The witnesses who overheard the phone call between President Trump and the Ukrainian president would not be testifying to hearsay as they would be testifying to the facts that the phone call happened and what the President said during the phone call. Witnesses who were involved in the provision of aid to the Ukraine would probably not be testifying to hearsay as they personally took part in that process and would be testifying from business records about what happened with the aid. The closest call would be the diplomats involved in the dealings with the Ukraine. It would not be hearsay that they were given the directive from senior officials that they were to cooperate with Giuliani and that they were told to try to get the Ukraine to commit to an investigation and that the Ukranian officials were asking about the aid and about a meeting with President Trump. However, without someone in the inner circle, it probably would be hearsay that President Trump was the source of the orders. Of course, if John Bolton and Mick Mulvaney testifies, they might be able to say that they were present when President Trump gave the orders.
Privilege — Privilege is a rule that excuses a witness from testifying about a matter. Most privileges arise from communications between two people (doctor-patient, attorney-client) and one of the participants is the one who holds the privilege. The person who holds the privilege can waive it — either by not objecting or by engaging in conduct that waives the privilege. For example, in a personal injury case, the plaintiff is generally considered to have waived the doctor-patient privilege for any treatment related to the injury that the plaintiff seeks to have the defendant pay for.
The key privilege in this case is executive privilege. Executive privilege is a rather loose privilege that has been recognized by the courts (primarily in the Nixon tapes case) but also has limits (as the Supreme Court in Nixon held that the legitimate need for the evidence prevailed over the privilege). The concept behind executive privilege is that it is valuable to a president to be able to receive honest advice from his senior staff and that the ability of the staff to be candid about the pros and cons of any issue might be hindered if the staff knew that their advice would be disclosed to the public later. (Many privileges are based on the same concept that the person making the statements — whether patient, client, or penitent — is more likely to be honest if they know that the person that the statements will stay private. However, because democracy depends on voters knowing what the government is doing, executive privilege is really a weak privilege when raised in court. However, in the legislative process, executive privilege tends to be raised more commonly because Congress has to go to the courts to get an order compelling testimony whereas the courts just order the witness to testify.
Simply put, if this case were being tried to a real court rather than a political body, the House managers would have the advantage in the current disputes about who should testify and what they would be permitted to testify about. But because the only thing that matters in the Senate is who has 51 votes, these issues will not be decided by what is legally correct but by what a group of key Republican senators decide is politically expedient — bite the bullet now and deal with Trump voters being unhappy or shut down the trial and hope that the truth does not emerge between now and November.
