Impeachment & The Importance of Due Process: The Testimony of LTC Andrew Vindman

Democrats are denying Trump due process to poison the well with their Star Chamber Proceeding.  The testimony of Vindman yesterday is but one example of it.

Left-wing zealots have often been prepared to ride roughshod over due process and basic considerations of fairness when they think they can get away with it. For them the ends always seems to justify the means. That is precisely how their predecessors came to create the gulag.

— Margaret Thatcher

The most fundamental right of any citizen under a prosecution by the state is to be able to cross-examine a witness, to explore their testimony for accuracy, to explore a witnesses biases, motivations and character, all so that jurors can best discern the truth.  Moreover, an equally important right of the defendant is to object to testimony against him being heard by the jury on grounds that it is irrelevant or insufficiently trustworthy to be admissible.  These all a part of due process of law, a practice so ancient in our Anglo legal system that it predates the Magna Carta of 1215.  And it is, to quote Justice Story, a “birthright” of ever American, even for non-progressives.

Due process of law also includes other processes and protections.  For instance, the federal government has a grand jury system, whereby the government, before indicting and bringing charges against a defendant, first presents its side of the case to a Grand Jury in a secret proceeding.  If the Grand Jury agrees that the government has made what appears to be a sufficient claim, they will vote to approve the filing of charges.  Importantly, testimony given before a Grand Jury is secret so as not to prejudice the Defendant.  It is a significant violation of the law to leak Grand Jury testimony.  A trial is then held in public, but the Grand Jury testimony is not admissible at the actual trial, absent some exception to the hearsay rule.  Fed. R. Evid. 803.

Lastly, it is fundamental to the due process of law in our modern era that the State, whenever it becomes aware of information that would tend to prove a defendant’s innocence or that would tend to show that a witness for the prosecution’s honesty or accuracy may be put at issue, it must provide that information to the defense as a “Brady Disclosure.”

So, let’s match that up with the Star Chamber process being conducted today by Nancy Pelosi and Adam Schiff.

Update:  As regards Brady material . . .

Those who have defended the unconstitutional process they are running have defended it on the grounds that Impeachment in the House is akin to a Grand Jury proceeding — and thus there is no need to follow the precedent of the past two centuries in this country, nor the common law of Impeachment from English law for the half millennium before that.  This, they say, justifies conducting hearings in secret, limiting questioning by Republicans, excluding the President and his attorney, and keeping the transcripts closely held and the members of the House under penalty of law to keep the proceedings secret.

But that is not what is happening.  All information favorable to Schiff’s narrative is immediately leaked to the press and then broadcast to the public, while all other information is suppressed.  For instance, two days ago, LTC Andrew Vindman was deposed by Schiff in a secret, closed hearing without the President represented by counsel, with Schiff apparently both improperly shaping and limiting their testimony.  Yesterday, these headlines graced the scandal sheets of the MSM:

Washington Post: Firsthand account of Trump’s Ukraine call puts GOP in bind, emboldens Democrats
New York Times: White House Ukraine Expert Sought to Correct Transcript of Trump Call
CNN: Retired General: Alexander Vindman is living his oath to America

Each of the above includes information that could only have come from Democrats who sat in the deposition.  Bottom line, there is nothing secret about any of this, so for those who claim this is simply akin to a Grand Jury, go stuff it where the sun doesn’t shine.  Schiff is muzzling Republicans on one hand and getting his uncontested, myopic narrative out into the public in the other.  He is trying this impeachment in the Court of public opinion in the most unfair manner possible.

Next, look to the headlines.  Each of them seems a blockbuster.  But in reality, it was, in terms of admissible and relevant testimony, virtually meaningless.  Let’s go through each.

The NYT headline gives the impression that the transcript of the Trump call was false.  But that is not what Vindman, who sat in on the call, testified.  The Wapo headline gives the impression that Vindman said something meaningful, but as I’ll address below, he did not.  Lastly, the CNN finds some worthless political general (and, as Ms. BWR pointed out below, there are a lot of them from the Obama era) who applauds LTC Vindman for “living his oath to America.”  What horse manure.  Vindman’s oath as an Army officer was to obey the lawful commands of his chain of command.  The President ordered him not to appear before the House because the subpoena was not validly issued.  Vindman chose to disregard that lawful order.  He does not deserve applause, he deserves an immediate and less than honorable discharge from the military for violating a lawful order.

So, let’s get to the specifics of Vindman’s testimony and the lack of due process at the hearing.  Here is how it is characterized at the NY Post:

He was the first witness who had actually listened in on the July 25 call . . .

In his opening statement, Vindman, who emigrated in 1979 at age 3 with his parents from Ukraine when it was part of the Soviet Union, detailed his concerns.

“I was concerned by the call. I did not think it was proper to demand that a foreign government investigate a US citizen, and I was worried about the implications for the US government’s support of Ukraine,” said Vindman, 44, who was raised in Brooklyn.

“I realized that if Ukraine pursued an investigation into the Bidens and Burisma, it would likely be interpreted as a partisan play, which would undoubtedly result in Ukraine losing the bipartisan support it has thus far maintained. This would all undermine US national security.”

So while Vindman adds his own criticism and opinion to known facts, he does not, at least in the many leaks to the newspaper, add to any of the relevant facts already known.  Most of that above is utterly irrelevant, because we already have the transcript of the call, and that call stands for itself without need of an intermediary to interpret it.  But we don’t hear that objection because the President was not represented at the hearing.  Vindman gives his opinion on the facts, but, his opinion is meaningless and would have drawn an immediate objection stopping him from testifying to it.  It is for the jurors, not a fact witness, to draw conclusions from the facts.  But Schiff wants to make sure the public is led to their conclusions by a line of people giving their own opinions in leaked, inadmissible testimony.  Lastly, there is no cross examination of Vindman and his possible biases, at least one of which, if true, is stunning.  Indeed, to the contrary, at one point during the Republican questioning of Vindman, Schiff told Vindman not to answer their questions.

It is hard to imagine a more unfair process than this.  And nothing the Democrats have proposed — particularly the joke resolution they have proposed for tomorrow — will cure it.  This will not end well.