What Every American Needs to Know About Hearsay and the Trump Impeachment

Thanks to the impeachment hearings, have watched more coverage of Congress doing business in the past week than I have in my entire adult life prior to last week. And one point that seems to come up over and over again – from my fellow Twitterers, from callers on C-SPAN, even from members of Congress – is that the transcript of the July 25 phone call and/or witness testimony over the past week is “hearsay.”

Most people using this term aren’t lawyers, so they aren’t using “hearsay” the way lawyers do. Instead, they’re musing it as a synonym for “irrelevant” or “prejudicial” – the way in which it frequently appears in colloquial conversation and in media depictions of courtroom trials.

It’s not the public’s fault that “hearsay” gets used in this way. Hearsay as a legal concept is extremely complex. It’s not uncommon for law students to spend more than half of their entire time studying the rules of evidence on hearsay and its exceptions. The colloquial meaning is much easier to grasp, and it’s often the only one non-lawyers really need to know.

Yet it’s important to understand that “hearsay” is a legal term, with a specific legal meaning. And not only is Trump’s statement in the July 25 transcript not hearsay, Trump and his supporters would actually fare worse if it was.

Here’s what you need to know.

What Is Hearsay?

Federal Rule of Evidence 801(c) defines hearsay as follows:

(c) Hearsay. “Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

What does this mean?

Essentially, hearsay has three elements:

  1. A statement,
  2. Made outside the trial/hearing where the statement is submitted,
  3. Submitted in order to prove that the content of the statement is true.

All three elements must be met for a statement to be hearsay.

Why Isn’t Trump’s Statement Hearsay?

At the core of the impeachment case against President Trump is a statement he made to Ukraine president Zelenskyy in a July 25 phone call:

Zelenskyy: We are ready to continue to cooperate for the next steps. Specifically we are almost ready to buy more Javelins from the United States for defense purposes.

Trump: I would like you to do us a favor though.

When it comes to the hearsay question, the first two elements are undisputed. No one is arguing that Trump speaking the phrase “I would like you to do us a favor though” isn’t a “statement” (it is). Nor is anyone arguing that it was made during a formal impeachment proceeding (it wasn’t).

The claims of “hearsay” depend on the third element: Is Trump’s statement “I would like you to do us a favor though” submitted in a formal impeachment proceeding (assuming one occurs) in order to prove the truth of what that statement says?

Answer: No. And here’s why: Trump’s feelings regarding the “favor” he asked Ukraine to do don’t matter. The fact that he tried to use the promise/withholding of military aid in order to get that favor does.

The statement at issue here is “I would like you to do us a favor, though.”

Imagine that Trump were accused of breaking a law that says “No U.S. President may want the leader of a foreign country to do him a favor.” To make the case that he broke this law, prosecutors submit the transcript in which Trump says “I would like you to do us a favor, though.”

That’s the closest we would get to this statement actually being hearsay in a court proceeding against Trump (and it’s still not hearsay, for reasons I’ll explain below). Here, the statement would be submitted in order to prove the contents of the statement: That Trump would like it if the Ukrainians did him a favor.

Formal articles of impeachment haven’t been filed yet, so we don’t know exactly what Trump might be accused of. We do know, however, that the accusations will need to fall under at least one of three headings: “treason,” “bribery,” and/or “high crimes and misdemeanors,” per Article II, Section 4 of the U.S. Constitution.

The U.S. Code contains definitions of both treason and bribery. It’s reasonable to assume that, if articles of impeachment contain either term, the standards applied will parallel those in the U.S. Code. “High crimes and misdemeanors” is not defined, but Congress has historically understood that term to cover more than just criminal acts (see, for instance, the Clinton impeachment).

Of the three, bribery currently appears to fit best, given what we’ve learned from the impeachment hearings and the transcript itself. Generally speaking, the core elements of bribery are (1) giving/trying to give or withholding/trying to withhold (2) something of value (3) in order to make someone else do/not do something.

In this context, “I would like you to do us a favor, though” would be submitted to prove Trump made an attempt to withhold something of value from Ukraine (in this case, a shipment of Javelin tank-busting missiles) until Trump got something from Ukraine (in this case, political dirt on the Bidens or the appearance thereof). Whether or not Trump “likes” that deal is irrelevant; what matters is that he tried to make it.

I Don’t Buy It. It Still Sounds Like Hearsay to Me.

Hearsay is sometimes a fine line to draw, and this is one of those times. Fortunately, the Federal Rules of Evidence help us clarify whether or not Trump’s statement is hearsay.

Even if Trump’s statement is “an out of court statement offered to prove the truth of the matter asserted in the statement,” it’s still admissible under the Federal Rules of Evidence in two ways:

First: In an impeachment hearing, the statement is excluded from the hearsay rule as the statement of a party opponent.

A “party opponent” is someone who is (a) both a party to a case (either plaintiff or defendant) and (b) on the opposite side from the party that wants to submit a statement. In a Trump impeachment, Trump is a party opponent of the U.S. House of Representatives, which is currently controlled by a Democrat majority.

FRE 803(d)(2) provides five grounds for excluding statements of party opponents from the hearsay rule. The first one applies here:

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

To exclude Trump’s statement from the hearsay rule, an opposing party would only need to demonstrate that (a) it’s submitting the statement to make its case against Trump (not in support of him) and (b) Trump made the statement.

Here, no one is disputing that an impeachment proceeding would be “against” Trump. Nor is anyone disputing that Trump was the one who said “I would like you to do us a favor, though” in that July 25 transcript.

Statements of a party opponent are one of several classes of statement that are excluded from the hearsay rule. That is, even though they technically meet the definition of hearsay, we do not treat them as hearsay.

In the case of the party-opponent exclusion, the reason we don’t treat an opposing party’s statements as hearsay is that the opposing party is participating in the hearing. Arguably, no one has a better chance to explain an out of court statement than the person who made it.

If the House decides to file articles of impeachment, then, they might decide to include the July 25 transcript in their case against Trump. If they do, Trump will have a chance to explain why his response to Zelenskyy’s request for Javelins was “I would like you to do us a favor, though.” Specifically, he’ll need to explain why that statement wasn’t an attempt to influence Zelenskyy’s/Ukraine’s behavior.

Second: Even if the transcript is hearsay, it meets one or more exceptions to the hearsay rule.

In addition to the list of exclusions from the hearsay rule, there are also (currently) 23 exceptions to the hearsay rule. These are statements that meet the definition of hearsay, but which we allow in court anyway because we trust the reliability of the statements.

So far, we’ve focused on Trump’s spoken statement itself: “I would like you to do us a favor, though.” In a legal proceeding, that statement would need to be entered into evidence in some concrete way.

Here, that way will almost certainly be by submitting the July 25 transcript itself, and the transcript likely falls under an exception to the hearsay rule.

The most relevant one is probably FRE 803(1):

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

The transcript of the call was made in real time by staff in the White House Situation Room. As such, it functions as a “present sense impression” – the transcribers were noting what they heard as they heard it. (Testimony from witnesses like Ambassador Taylor, who took their own notes while they were present for the call, would likely fall under the same exception.)

The transcript may also fall under FRE 803(5), “recorded recollection,” or FRE 803(6), “records of a regularly conducted activity.”

It’s important for non-lawyers to understand that in most situations, finding even one applicable exception or exclusion to the hearsay rule can be difficult. In the case of Trump’s statement in the July 25 phone call, however, we have as many as five possible avenues of exception or exclusion – and that’s only if the argument that the statement isn’t hearsay fails in the first place.

In other words, this statement isn’t merely not hearsay. This statement is not hearsay in two different ways (by definition and by exclusion). And even if the statement was hearsay, it would still be admissible (as a present sense impression, recorded recollection or recording of a regularly conducted activity).

Why Would Trump Fare Worse If This Statement Was Hearsay?

The claim that the transcript is “hearsay” are most popular among supporters of President Trump. It’s one of many claims in the pro-Trump arsenal, all of which are aimed at proving the same thing: It would be improper or illegal to impeach the President.

These supporters, however, are arguing at cross-purposes. If Trump’s statements are hearsay (and if no exception or exclusion applied), they would actually be in a worse situation.

To understand why, let’s return to the core statement in question.

Trump: I would like you to do us a favor though

Suppose Trump was facing an article of impeachment that claimed that his preference that Ukraine do something for him is an impeachable offense. In that case (and absent any exclusion or exception), this statement would be hearsay. It would be an out of court statement submitted to prove that what it says is true.

To prove any charge based on a statute, the prosecution has to prove every element of the charge. For example, if I’m charged with “assaulting someone with whom defendant is or has been in a domestic relationship” (aka domestic violence), it’s not enough to prove that I punched Susie in the face. The prosecutor also has to prove that Susie and I are/were dating or married. I can’t be guilty of assaulting someone I’m in a relationship with if I have never been in a relationship with them.

In our hypothetical world where Trump’s “I would like you to do us a favor, though” is hearsay, the charge in question would have to be “No Preisdent may prefer that someone else do him a favor.”

In order to prove that charge, Congress (and let’s be real, we mean “Congressional Democrats and maybe Justin Amash”) has to demonstrate that Trump, personally, would prefer that Zelenskyy do a “favor.”

To prove Trump wants the favor (rather than that he simply asked for it), Congress would have to prove a number of additional facts. They’d need to answer questions like “Why would Trump like it if Zelenskyy did him a favor?” “How would Trump benefit from Zelenskyy doing him a favor?”

And, perhaps most damning, “What favor would Trump be asking for that would be a favor he would like?”

Trump answers that question on the next page of the transcript:

The other thing, There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you ·can look into it …

To make this statement hearsay (and thus keep it out, barring exceptions/exclusions), there would have to be evidence that the contents of this statement are true: That there is “a lot of talk about Biden’s son,” that “Biden stopped the prosecution,” that “a lot of people want to find out about that,” that “whatever you can do with the Attorney General would be great,” and that “Biden went around bragging that he stopped the prosecution.”

And here’s the catch: There is little to no evidence that any of this ever happened.

In other words, this statement can’t be kept out as hearsay, because it wouldn’t be submitted in order to prove the truth of what it asserts. In fact, it’s currently possible to prove that what it asserts is actually false.

An out of court statement isn’t hearsay if it’s submitted to prove something other than the truth of what is contained in the statement. Such as to prove that Zelenskyy felt persuaded to help Trump (or not). Or, more damningly, that Trump himself would have benefited from Zelenskyy’s belief that the Bidens needed to be investigated.

So even if there was a way to avoid bringing up Trump’s statement “I would like you to do us favor, though” during an impeachment proceeding (or courtroom trial), there is no way to keep out this additional evidence that Trump would personally benefit from making Zelenskyy believe the Bidens needed to be investigated.

In practice, this argument is academic (at best). An impeachment proceeding is not perfectly analogous to a civil or criminal trial. Among other things, Congress can impeach a President based on conduct that is merely improper for an elected official holding high office, even if that conduct isn’t proscribed by statute.

As such, it’s very likely that the Democrats will make the above argument even though Trump’s statement “I want you to do us a favor, though” is not hearsay. One doesn’t depend on the other; both arguments are available.

So Where Are We Now?

We are several days into impeachment inquiry testimony right now. As I write this, Fiona Hill is answering rebuttal questions from Rep. Adam Schiff.

For several days, I’ve watched Republican representatives ask questions and give speeches on a host of satellite issues: Were the Bidens actually involved in wrongdoing? Did Ukraine actually get the Javelins mentioned in the July 25 call? How many times did the Ukrainians offer Lt. Col. Vindman a job? Why was Ambassador Yovanovitch recalled?

The core facts, however, are not in dispute: Insofar as Trump was interested in Ukraine, it was in how he could get the Ukrainians to help him defeat a political opponent.

All the other questions are at best irrelevant to the core of the matter and at worst orthogonal. And I suspect that many in the pro-Trump/anti-impeachment camp know it. It’s why the “this is hearsay!” argument has legs: Because it would be one of the few ways to actually neutralize the July 25 transcript.

If the transcript were hearsay. If no exceptions or exclusions applied. Unfortunately for Trump, that is not the case.