Hearsay is evidence of a statement made by someone not in court that is offered to establish the truth of what was said. The whistleblower complaint does contain information that other people relayed to the whistleblower and notes that the whistleblower did not directly witness the underlying events. If a party sought to have the whistleblower testify about those conversations in court, it is true there would be a hearsay objection.
It is also irrelevant, primarily because the whistleblower complaint has already been confirmed by the White House’s own memorandum of the conversation. Acting director of national intelligence Joseph Maguire, testifying before the House Intelligence Committee last week, agreed that the whistleblower’s information has been largely corroborated by the White House memo. The White House has also confirmed using a classified server to hide the record of the conversation, another whistleblower allegation. To a large extent, this investigation has already moved beyond the whistleblower report and is based primarily on the White House’s own admissions and record of the phone call.
The White House memo of the conversation would not be considered hearsay in a court proceeding. The Federal Rules of Evidence provide a statement is not hearsay if it is a party’s own statement offered against that party — a confession by a criminal defendant, for example. The memo contains president Trump’s own statements and is not hearsay if offered against him. The rule against hearsay also has a number of exceptions, including one for official records maintained in the ordinary course of business. The White House memo likely would fall within this “business records” exception, as well.
Equally misguided are claims that the initial investigation into the whistleblower’s complaint is suspect because of the hearsay contained in that complaint. Investigations routinely are begun based on hearsay evidence, tips from confidential informants, newspaper reports, or other information that may not necessarily be admissible in court. There has never been any rule against relying on hearsay to initiate an investigation. The investigation is done to see whether the hearsay can be corroborated — which is exactly what happened here.
In fact, in the federal court system, hearsay not only may be used to begin an investigation; it may be used to indict. It is common for defendants to be charged as a result of grand jury proceedings that rely on hearsay evidence. Because the grand jury is only making an accusation and not deciding guilt or innocence, the Supreme Court has held that rules against hearsay and other evidentiary rules generally do not apply in grand jury proceedings. In an impeachment proceeding, the House of Representatives is most directly analogous to the grand jury. The House investigates and makes the charging decision, and the Senate holds a trial to decide whether the charges merit conviction and removal from office. So, even if some of the evidence against the president was hearsay, the House would be on solid ground relying upon that evidence when deciding whether to impeach.
Of course, Graham, a lawyer and former prosecutor, knows all of this. When he and other supporters of the president cry “hearsay," they are not concerned about accuracy or legal niceties. To the general public, “hearsay” is shorthand for “unreliable.” The hearsay claim is simply an attempt to raise doubts about the overall credibility of the evidence against the president.
But the hearsay claim is not only legally unsound, it’s tactically absurd. The logical Democratic response is, “Absolutely, we don’t want to rely on hearsay when deciding on impeachment. So let’s interview the whistleblower, identify all the witnesses that he or she talked to, and get sworn testimony from all of them. Let’s have all the other relevant witnesses with direct knowledge, such as Trump lawyer Rudolph W. Giuliani, testify under oath as well. Before making a decision on impeachment, let’s get as much firsthand, eyewitness testimony as possible.” This will only serve to strengthen any evidence of misconduct.
The initial whistleblower complaint may have relied, in part, on hearsay, but any articles of impeachment Democrats put forward will not. Impeachment, if it happens, will be based on evidence from those with direct knowledge and the White House’s own records of what happened. The current cries of “hearsay” are simply an attempt to deflect attention from the already confirmed facts about the president’s misconduct.