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Legal Experts Say The Right To Confront Accusers Does Not Apply To Impeachment

MARY LOUISE KELLY, HOST:

All right. President Trump is demanding to meet the whistleblower whose complaint prompted the impeachment inquiry. That complaint led the president to tweet, quote, "Like every American, I deserve to meet my accuser." As NPR's Sarah McCammon reports, the president appears to be referring to part of the Constitution that gives criminal defendants the right to confront their accusers in court.

SARAH MCCAMMON, BYLINE: The whistleblower's credibility has repeatedly been called into question by Republican members of Congress. Here is Senator Lindsey Graham this week on CBS's "Face The Nation."

(SOUNDBITE OF TV SHOW, "FACE THE NATION")

LINDSEY GRAHAM: We're not going to try the president of the United States based on hearsay. Every American has a right to confront their accuser.

MCCAMMON: Graham dismissed the whistleblower complaint and insisted the president should be able to confront that person.

(SOUNDBITE OF TV SHOW, "FACE THE NATION")

GRAHAM: This seems to me like a political setup. It's all hearsay. You can't get a parking ticket conviction based on hearsay.

MCCAMMON: But that right to face your accuser guaranteed in the Sixth Amendment to the Constitution wasn't written to apply to impeachment, says David Dorsen, a former assistant chief counsel on the Senate Watergate Committee.

DAVID DORSEN: This is not a criminal proceeding. It's a impeachment proceeding, and the rules of evidence don't apply.

MCCAMMON: Dorsen says this impeachment inquiry, announced by House Speaker Nancy Pelosi, is still in the early stages.

DORSEN: Documents can be introduced, and otherwise, matters can be presented that do not strictly conform to the rules of evidence.

MCCAMMON: Yale Law professor and former Obama administration lawyer Harold Koh says the purpose of the Sixth Amendment is pretty straightforward.

HAROLD KOH: It's designed to make sure that before someone goes to prison, that they get a chance to confront the person who has charged them with the crime.

MCCAMMON: And Koh says this ultimately isn't about the whistleblower, whoever they may be. It's about the documents and potential wrongdoing by the president.

KOH: This is a complete canard. The whole point of having whistleblower complaints is that whistleblowers point to problems, and the problems can then be revealed by documents. And then the person who is being charged has to demonstrate that the whistleblower is telling falsehoods through the documents.

MCCAMMON: For now, Trump should worry less about the whistleblower and more about the statements coming from his own legal team, says Larry Gibson, a law professor at the University of Maryland.

LARRY GIBSON: Well, you don't often have the person accused producing the smoking gun.

MCCAMMON: Gibson is referring in part to statements by Rudy Giuliani, the president's lawyer. Giuliani told Fox News that he was asked by the administration to speak to Ukrainian leaders about investigating the son of Trump's political rival, former Vice President Joe Biden.

(SOUNDBITE OF ARCHIVED RECORDING)

RUDY GIULIANI: You know who I did it at the request of? The State Department. I never talked to a Ukrainian official until the State Department called me and asked me to show it.

MCCAMMON: The White House itself released a summary of President Trump's call with the Ukrainian leader, which Professor Gibson says likely will become key evidence in any impeachment process. He says this is all extremely unusual.

GIBSON: Well, I've taught law for 47 years. I've (unintelligible) what many prosecutors and many defense attorneys. It is rare that you start the case with this kind of evidence against an accused produced and handed to you by the person accused. I mean, that just doesn't happen.

MCCAMMON: If the impeachment inquiry leads to a trial in the Senate, Gibson says President Trump and his lawyers will be able to respond to all the evidence presented against him. Sarah McCammon, NPR News, Washington. Transcript provided by NPR, Copyright NPR.