Opinion

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Reality Check

Evidentiary Matters

“Bad character” is not a basis for impeachment

This revelation comes as no surprise: I was not a very studious law student. I viewed law school as a means to an end and my grades reflected as much. The one class I enjoyed was Evidence. I liked learning the rules of how evidence is delivered in Court and how to prevent irrelevant evidence from being considered. So, when the public impeachment inquiry began, I expected the former prosecutor and presiding chairman Adam Schiff to have a rock-solid presentation of direct evidence sustaining impeachment. Thus far, my expectations have not been met.

Using primacy and recency when selecting witnesses to testify in court is a basic tenet of preparing a case for trial. The jury typically recalls the first witness and the last witnesses, so the lawyer should line up his or her best witnesses first and last and fill the middle with less compelling witnesses. The first witnesses that testified before the impeachment panel offered nothing other than hearsay and emotion. The reason why hearsay is not admissible in court is because it can’t be verified. You can’t cross examine the actual receiver of the information to ensure its veracity and the person relaying the information to the panel has no ability to validate the information. A judge in any regular court in the country would have excluded the first day’s witnesses on the basis of hearsay, and instead required direct testimony from participants in the Ukraine phone calls. 

The second day of testimony likewise would have been disregarded, as it was focused on the termination of a State Department employee and the questions were geared towards the feelings of the witness about her termination. A witness who was subject to at will termination by the President, who in fact was terminated (just like many at will employees were terminated by President Obama) adds zero substantive and reliable factual information to the impeachment inquiry. If that witness has a grievance for the manner in which she was treated by the President or any of her superiors she absolutely should take those grievances to the Office of Personnel Management to be addressed. Using the impeachment inquiry as a forum to play what amounts to a game of telephone and to address personnel grievances is a misuse of the forum and reflects Mr. Schiff’s acumen as a presiding chair and prosecutor.

On the heels of the Mueller report and failed collusion inquiry, the American public expects direct evidence of an impeachable offense. “Bad character” is not a basis for impeachment. If the best evidence Mr. Schiff has is hearsay and misplaced former employee grievances, Democrats should prepare for the fallout in 2020 and Mr. Schiff should stay in Congress because he has no business practicing law.

Tammi Fisher is an attorney and former mayor of Kalispell.