In 1603, Sir Walter Raleigh, one of the most celebrated men of his era, was brought to trial for treason based upon accusations generated by the Spanish Ambassador. The evidence used against him was testimony taken in secret and a letter by an alleged accomplice, a man named Cobham. Raleigh demanded the witness against him be brought forward so that his motives to lie could be examined in public. He proclaimed, “Cobham is absolutely in the King’s mercy; to excuse me cannot avail him; by accusing me he may hope for favour.” Raleigh suspected that if the witness was called to the stand before the judges he would recant. Raleigh demanded that the judges require the witness to appear, arguing that “[t]he Proof of the Common Law is by witness and jury: let Cobham be here, let him speak it. Call my accuser before my face ….”
His request was refused. He was convicted, sentenced to death and beheaded. One of the judges at Raleigh’s trial later said of the proceedings, “the justice of England has never been so degraded and injured as by the condemnation of Sir Walter Raleigh.”
The injustice of Sir Walter’s case was recalled by Justice Antonin Scalia in Crawford v Washington, a case decided by Supreme Court in 2004, which reversed a conviction because the accused had been denied his right to confront and cross-examine the witnesses against him. It is the leading case on the Right to Confront and Cross-Examine the Witnesses against you.
As impeachment fever has spread through our body politic, proceedings in Washington remind one of Sir Raleigh’s case. Secret proceedings and testimony, the use of anonymous informants posing as whistleblowers, denial of the right of cross-examination, documentary evidence hidden from the accused, threats by members of Congress to arrest and hold members of the rival political parties in Cages. The head spins with the implications. The procedures employed resemble nothing so much as the Star Chamber, used in Merry Ole’ England to eliminate political opposition.
As I have written in the past, it is indisputable that our most precious rights, from Freedom of Speech to Freedom of Religion to Due Process are not granted by the Constitution nor given to us by the Bill of Rights. Instead our rights exist apart from those documents, though they are protected by them. To the Framers our rights were given us, not by men, but rather by our Maker. They are human rights to which everyone is entitled. Nevertheless, the great men who gave birth to our nation, thought it wise to specify rights requiring special protection. And that, in turn, enshrines them as universal values in our society.
The Sixth Amendment provides, inter-alia, that “the accused shall enjoy the right to a speedy and public trial, . . . ,and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defense.”
While legislative actions of Congress are not judicial proceedings once they step outside the legislative role, such as in impeachment proceedings, they are, as Hamilton said in the Federalist Papers, engaging in the nature of a judicial proceeding. There is an indictment procedure, a trial and conviction or acquittal. And as such questions of Due Process, Right to Counsel, Right to Examine evidence and the Right of Confrontation are very much at issue.
What we don’t have from past cases or practice is a clear picture of the scope of these rights in impeachment proceedings. I will most likely comment on issues as they arise in the coming weeks and months, but it will be helpful to just address one issue at a time. What is clear is that our values are reflected in respect for concepts such as the Right to Confront the Witnesses. And if we are to honor or discount them in the coming such values in future proceedings will be meaningful in what we are saying to the public, our fellow citizens, indeed our children who ready or not are going to inherit and be responsible for our way of governing ourselves.
The right to confront one’s accusers is a concept that dates back to Roman times.
A few decades after Sir Walter Raleigh lost his head, the Courts of England accepted the justice of the concept to a civilized society. In 1696, The question was debated at length during infamous proceedings against Sir John Fenwick on a bill of attainder. Fenwick’s counsel objected to admitting the examination of a witness who had been spirited away, on the ground that Fenwick had had no opportunity to cross-examine. He said, “[N]o deposition of a person can be read, though beyond sea, unless in cases where the party it is to be read against was privy to the examination, and might have cross-examined him …[O]ur constitution is, that the person shall see his accuser”.
By 1791 (the year the Sixth Amendment was ratified), courts were applying the cross-examination rule even to examinations by justices of the peace in felony cases.
During the debates over the drafting of the Constitution, A prominent writer criticized the use of untested evidence. “Nothing can be more essential than the cross examining [of] witnesses, and generally before the triers of the facts in question. [W]ritten evidence … [is] almost useless. . . . and very seldom leads to the proper discovery of truth.”
The First Congress responded by including the Confrontation Clause in the proposal that became the Sixth Amendment.
As Scalia proclaimed in the Crawford case, “An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” The constitutional text, like the history underlying the common-law right of confrontation, “thus reflects an especially acute concern” with an out-of-court statement.
The historical record also supports a second proposition: that the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.
“Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of “reliability.”
As we edge ourselves along a dangerous precipice for our nation and our way of governing ourselves, it is well that we be open to how our actions are reflecting our values. The use of secret proceedings and untested witnesses is dishonorable and has no place in as important a judicial proceeding as Impeachment of a President.