President Trump's mythical justice system and the whistleblower's disguise 

President Trump's mythical justice system and the whistleblower's disguise 
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An impeachment is no criminal trial, and the inquiry is merely an investigation to determine whether to charge. Still, President Donald TrumpDonald John TrumpJudge rules to not release Russia probe documents over Trump tweets Trump and advisers considering firing FBI director after election: WaPo Obama to campaign for Biden in Florida MORE and his supporters insist that during this early stage he get myriad protections that he claims are available to criminal defendants. Those are figments of his imagination.

Trump does not have a right to confront the whistleblower right now. If this case were in court, his threats would give the judge reason to put restrictions on his access to the witness. In organized crime trials and congressional hearings, our institutions have developed the tools to shield witnesses to defend the rule of law.

Investigators drive an investigation. Once they have amassed evidence, the prosecution steps in. During this process, a suspect has none of the rights the president asserts.


A suspect can opt to cooperate, in hopes of averting an indictment, or refuse to do so. The latter is the path the president has chosen. That gives him no special protections.

There is no right to confront any witness during an investigation. And our criminal justice process limits that right later if the defendant or his consorts appear to threaten a witness. Those procedures were developed and tested during organized crime trials.

The criminal justice system is regularly tasked with protecting crucial witnesses whose safety is endangered. Sometimes it fails spectacularly, and every failure harms the rule of law. Often it succeeds in assuring the trial testimony that is crucial for conviction and in protecting the witness’s life.

Prosecutors depend on witnesses to make their cases. Cooperation can be life-threatening for eye witnesses to gang slayings, police informants, undercover agents and “moles.” Sometimes offenders or their friends put out word that nobody testifying against them will survive it; for undercover officers, no such threat is needed, as the danger is obvious. Some witnesses are willing to take that risk; others are not. If they recant or “forget,” if they disappear or refuse to testify, the case may be over. That is a win for crime and a defeat of law.

Prosecutors have expanded their tools to protect witnesses. They may temporarily relocate the witness to assure his or her appearance at trial. On the back end, federal prosecutors may promise entry into the federal witness protection program. It was developed to protect Mafia turncoats after their testimony. Soon, Takashi 6ix9ine may find himself in the program after his testimony against organized crime figures. Yet that program is an extreme measure for a high-profile witness whose life continues to be at risk after testifying.


To protect witnesses, courts occasionally agree to restrict the defendant’s confrontation rights and the right to a public trial. Yet they do so only sparingly. Still they have allowed witnesses to appear in disguise, shielded by a fake beard and glasses. Some courts have denied the defendant access to a witness’s name and home address. In yet other cases, courts have agreed to close the hearing to protect the witness. Those restrictions are often crucial for witnesses whose identity needs to be protected.

Limited restrictions on the defendant’s confrontation rights serve to protect the integrity of our criminal justice system. Congress should adopt the same strategy. The congressional committees should be able to hear from the whistleblower in closed session or in disguise if needed.

Since the president, the target of the investigation, has threatened the whistleblower, there is powerful reason to continue to shield the whistleblower’s identity both from him and the public. The mob was once thought all-powerful, but its influence and strength were negligible compared to those of the president.

The stakes could not be higher for the country and our democracy. Mythical protections for the defendant should not paralyze our institutions. The lessons the judicial system has learned in the battle against organized crime should serve as a blueprint throughout the impeachment.

Congress would do a disservice to the rule of law if a crucial witness failed to testify out of fear. Let the whistleblower be disguised.

Nora V. Demleitner is the Roy L. Steinheimer Jr. Professor of Law at Washington and Lee University in Virginia, editor of the “Federal Sentencing Reporter,” and lead author of a casebook on sentencing. Follow her on Twitter @NDemleitner.