No credibility in this braying for Trump's removal

No credibility in this braying for Trump's removal
© Greg Nash

It is a bedrock principle enshrined in our Constitution that misconduct by the government at the outset of a criminal investigation renders prosecutions void, even when a defendant may be guilty. The public policy reason for allowing the guilty to go free is to check the otherwise unlimited power of the state. 

That is not to say that President TrumpDonald John TrumpLawmakers release defense bill with parental leave-for-Space-Force deal House Democrats expected to unveil articles of impeachment Tuesday Houston police chief excoriates McConnell, Cornyn and Cruz on gun violence MORE is guilty of anything. But if we are going to take the extraordinary step of removing a duly-elected president from office, we must adhere to the Constitution and hundreds of years of jurisprudence as our guideposts. This slow-rolling attempt to remove President Trump, which began practically the moment he was elected, perfectly illustrates why these fundamental principles underlie our most basic criminal processes.  

Impeaching and removing a U.S. president is no different from prosecuting a criminal case, though the stakes certainly are.  

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As former special counsel Robert MuellerRobert (Bob) Swan MuellerTrump says he'll release financial records before election, knocks Dems' efforts House impeachment hearings: The witch hunt continues Speier says impeachment inquiry shows 'very strong case of bribery' by Trump MORE’s investigation proved, those opposed to the president are shameless in their rejection of American ideals of fundamental fairness. Those braying for President Trump’s removal seem untroubled by the partisan bias and outright criminal conduct, such as leaking classified material — that used to be considered dangerous for our national security — and lying to a federal court. That underpins the entire impeachment push. 

In criminal law, the “fruit of the poisonous tree” doctrine holds that evidence gathered at the outset of an investigation that resulted from government misconduct must be discarded, as should anything that flows from it. That principle certainly should have been applied to the so-called “dossier” produced by Christopher Steele that the FBI used to obtain Foreign Intelligence Surveillance Court warrants against Carter Page, then a campaign adviser to Donald Trump.  

The Justice Department Inspector General’s report on that chapter in the saga that has led to impeachment proceedings doubtless will reveal malfeasance on the part of those who swore to the court that the dossier was reliable. Whether criminal prosecutions flow from that malfeasance is a question that likely will be answered by a grand jury working with special prosecutor John Durham.  

But the Steele dossier exemplifies the only kind of evidence those opposed to President Trump put forward when labeling him a criminal and a traitor. According to some media reports and other sources, the “whistleblower” for the now infamous July phone call between President Trump and Ukraine’s president reportedly has partisan political bias and connections to those opposed to President Trump. In a criminal case, that kind of bias would be challenged with adversarial cross-examination so that the jury — or here, the American people — could gauge the credibility of the information coming from someone with that overt bias.  

Our entire justice system is based upon that critical adversarial component. One-sided presentation of evidence violates the Constitution and, indeed, was a major factor in our bid for independence from just that kind of “justice” offered in King George’s England in the 1700s.

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There is nothing about this impeachment inquiry that has been fair to the target. The president’s supporters have been told they’ll be prevented from calling witnesses with relevant information. They have not been permitted to test the potential bias of the whistleblower, though his attorney has said the whistleblower would answer questions from Republicans on the intelligence committee. Even with public hearings, the president is still being denied the right to call witnesses and test the credibility of the case against him in any meaningful way. Shoplifters and drug dealers are not treated this way when they are accused of crimes. Yet, we propose removing the president under these kangaroo court rules.  

Even some legal scholars on the left — certainly no fans of President Trump — have put politics aside over the past several years and shared their analysis that this kind of unfair, political hit job sets a dangerous precedent for our democracy. Each side no doubt is guilty of hypocrisy, of ignoring misconduct, of showing bias when it suits them. But, impeachment hearings that violate fundamental notions of fairness must be taken for what they are: another partisan attempt to bring down a lawfully elected president.

Francey Hakes was a prosecutor for 16 years and now consults on national security and the protection of children. As a former assistant U.S. attorney, she appeared before the Foreign Intelligence Surveillance Court, presenting applications for counterterrorism and counterespionage warrants on a special detail to the Department of Justice Office of Intelligence Policy and Review. Follow her on Twitter @FranceyHakes.