Adam Schiff’s ‘ham sandwich’: Not an inquiry, just a show
The most familiar metaphor about criminal investigations is, of course, that a prosecutor could get a grand jury to indict a ham sandwich. Like all good metaphors, there’s enough exaggeration in it to make a strong impression. It resonates, though, because it conveys the entirely accurate sense that a grand jury is a one-sided affair. We’re wired to believe there are two sides — at least — to every story. That’s why the grand jury rubs us the wrong way.
And that’s why the impeachment show — not inquiry show — that Democrats are running should really rub us the wrong way.
Rep. Adam Schiff (D-Calif.) and his House Intelligence Committee are taking the show public this week. The inquiry he’s been running is, he claims, analogous to a grand jury investigation: It’s a preliminary investigative stage before the inquiry’s transfer to the Judiciary Committee for the formal consideration of articles of impeachment.
Grand juries, however, never go public. And that is precisely because they are intentionally one-sided. They are kept secret by law to avoid prejudicing the suspect.
Prejudice is exactly what Schiff is aiming for, however. The point is not impeachment; it is to wound President Trump politically.
To be clear, Schiff’s grand jury analogy is bogus. Congress is not a grand jury. Grand juries are designed to be at least somewhat objective — a body of impartial citizens who, by constitutional mandate, must be satisfied there is probable cause that a crime has been committed before the state is permitted to indict and try a citizen presumed to be innocent. In theory, the grand jury is there to protect the suspect from an overbearing prosecutor. Here, House Democrats are the overbearing prosecutor, not the protective grand jurors.
What is happening in the House is a political exercise. Schiff is a hyper-partisan. With the anti-Trump media leaving his absurd grand jury analogy unchallenged, he exploits it when it is useful, namely, when telling Republicans they will not be permitted to call their witnesses, and he puts the analogy aside when it is not useful, namely, in convening one-sided public hearings.
As a matter of due process, Schiff’s made-for-TV spectacle is a bad joke. That was underscored this past weekend when (a) Democrats gave Republicans a ridiculously short deadline to propose their own witnesses, whom Chairman Schiff reserved the right to veto; (b) Republicans duly proposed witnesses on the issues of Democrats’ collusion with Ukraine in the 2016 election campaign and in possible corruption; and (c) Schiff, as predictably as sunrise, ruled the GOP’s witnesses irrelevant.
In point of fact, the witnesses that Republicans seek to call are entirely relevant to what would be at issue in an impeachment trial, to wit: Is any misconduct by the president alleged in an article of impeachment sufficiently egregious that he should be removed from power?
But, see, a grand jury is not a trial.
The ham sandwich metaphor is apt because the grand jury protection, though constitutionally required, is modest. The grand jury is not the forum for trying the case. Its sole role is to determine whether the prosecutor has enough evidence — just probable cause at this early stage — to warrant filing a formal allegation (the indictment), which transfers the case to a judicial court for a full-blown trial at which the prosecutor must bear the much higher, beyond-a-reasonable-doubt burden of proof.
In the grand jury, the prosecutor is not required to tell the defendant’s side of the story. The law does not even call for the prosecutor to share with grand jurors exculpatory evidence in the government’s files. The only matter up for consideration is: Does the prosecutor have enough proof of misconduct to proceed to the real ballgame — the trial?
In our system, because of the dictates of fundamental fairness, it is at the trial that things go public. That is because, at the trial, the accused is armed with all the Constitution’s due process guarantees — the right to counsel, to confront witnesses, to call witnesses and present a defense, the presumption of innocence and the high burden of proof imposed on the prosecutor.
So here is what Schiff is being allowed to pull off.
He is claiming, “I’m just like the grand jury,” in order to confine the hearings to witnesses who will be most damning in portraying an abuse of power by the president — the exploitation of his foreign affairs power to squeeze a foreign government into helping his 2020 political campaign by investigating a potential Democratic rival. The grand jury analogy is Schiff’s rationale for excluding witnesses Republicans want to call — witnesses who could put the president’s demands in context by establishing that Democrats colluded with Ukrainian officials in connection with the 2016 campaign and that prominent Democrats, such as Joe Biden’s son, Hunter, corruptly cashed in on his father’s political influence over Ukraine’s government.
That would all be fine if Schiff would be consistent with his grand jury pretense and do all of this behind closed doors. Then, when we finally got to a public stage, the president and Republicans would have equal time and equal right to present their side of the case. But that is not what Schiff is doing. He is using his control over a kangaroo-court process to publicize his dark version of events, and to muzzle the other side.
This is a deeply un-American process.
I am not a knee-jerk Trump partisan. I am open-minded that the president may have abused his power, as all presidents do from time to time. I have always thought his best defense is that, in the scheme of things, the abuse was inconsequential: The Ukrainians got their defense aid without having to commit to investigating the Bidens; the president was within his rights to ask for Kyiv’s help in examining Ukraine’s role in the Obama administration’s controversial Trump-Russia investigation; the Trump administration has provided lethal aid in supporting Ukraine against Russian aggression, which the Obama administration would not do.
All of that matters because, in an impeachment case, the issue is not merely whether the president abused his power but whether the abuse, on balance, was so egregious that the president should be removed from power.
Congress is supposed to explore both of those questions — was there an abuse, and how egregious was it? It should be doing so in the light of day: Both issues, in public, with full due process rights for the president.
Adam Schiff and the Democrats are not a grand jury. They should not have been permitted to take the process behind closed doors and make it one-sided. But if they are going to keep it one-sided, like a grand jury, they should stay behind closed doors the way a grand jury does.
If the case is going on national television, fundamental fairness dictates that it be the whole case. Otherwise, it’s just a show, produced and directed by partisan Democrats.
Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.