Demanding to meet their accusers
What Trump and Bibi are getting wrong
At first glance, demands by Prime Minister Benjamin Netanyahu and US President Donald Trump to confront their accusers – Netanyahu regarding alleged bribery, and Trump regarding impeachment – seem eminently reasonable.
Isn’t it a fundamental principle of the rule of law and due process that defendants get to confront their accusers? And don’t we all believe that transparency, especially when relating to matters of public interest, is a good thing?
However, those initial points are where the reasonableness of demanding the right to confront the accuser ends.
When Netanyahu requested in January to confront the state’s witnesses against him – aired on national television no less – he was presenting a straw-man that sounded good for public relations, but was legally groundless. (Netanyahu also requested last week that his pre-indictment hearing with Attorney-General Avichai Mandelblit be broadcast
live.)
Put simply, while Netanyahu and any other suspect has a right to refuse such a confrontation, there is no legal obligation to permit such a confrontation.
Sometimes police do it, and sometimes they do not.
Former prime minister Ehud Olmert, a center-left politician, did not get to confront his accusers, so there is no argument here of anti-right-wing bias.
Police generally carry out a confrontation if they feel they need it to help prove their case, or if they themselves are struggling about who to believe when there are no documents and it is just ‘he-said she-said.’
Obviously they would never conduct a confrontation on live television, which could taint the evidentiary value of the confrontation.
Netanyahu’s request also misunderstood the purpose of confrontations. The stage of a police investigation confrontation is not to speak to the public, rather it is to gather evidence that can later be admissible in court. In the prime minister’s public corruption cases, there is almost no ‘he-said shesaid’ without documentary proof.
Netanyahu admits to all of the damning facts against him, it is just that he frames the facts as being incapable of proving guilt by saying they do not prove criminal intent.
More importantly, Netanyahu absolutely will get to publicly confront the state’s witnesses against him – in court.
In fact, in court – which is public – is the place where the law ensures that defendants get to confront their accusers, though not aired on television.
Trump’s situation with the anonymous CIA whistle-blower
who filed a complaint against him is different, but the laws involved also do not let him confront his accuser on live television or outside of a legal proceeding.
The complaint against Trump that he allegedly abused his power to try to influence Ukraine into investigating Joe Biden (or his son Hunter) – currently his main potential opponent for the 2020 US presidential election – was what started the impeachment avalanche.
Unlike Netanyahu, Trump not only has no right to confront the whistle-blower before impeachment hearings are held against him, but he may never confront him.
The US and other democracies have laws specifically to protect whistle-blowers, lest future whistle-blowers be deterred from exposing corruption or abuse of power. The whole point of whistle-blower statutes is that without giving government officials the protection to feel safe coming forward, top government officials’ abuse of power could not be exposed.
From Trump’s point of view, one could claim this is unfair: how can he be convicted of crimes without cross-examining his accuser?
First, in impeachment hearings, Trump is not going to be in court and will not face jail time. The impeachment hearings have a legal tone to them, but they are primarily a political process to forcibly remove a sitting president from office.
Democracies reserve the really big procedural defenses only for defendants facing jail time, not public officials – however important – facing the loss of their job.
Next, while the CIA whistle-blower started the ball rolling, he will not actually be the central accuser in the impeachment proceedings.
As Trump correctly pointed out, the whistle-blower’s knowledge is second-hand.
The actual accusers against Trump in the impeachment proceedings will be Trump himself, as quoted from the released transcript of what he said to Ukrainian President Volodymyr Zelensky; the approximately 12 government officials who were on the call; and/or others who dealt with trying to conceal its contents afterward.
In other words, the media may have a field day with the whistle-blower, but he will not make or break Trump’s impeachment case.
Finally, the whistle-blower did not merely toss out his accusations to the US Congress. The CIA’s inspector-general had to determine that the whistle-blower’s complaint was legitimate – which he did by checking other related evidence – before the complaint was passed on to Congress.
The last element – that Netanyahu has wanted to have his confrontation with the state’s witnesses or with Mandelblit broadcast live – is the most obvious non-legal argument. It is true that the police leaks against Netanyahu in the media have been unfair in influencing the public, but these kinds of
intricate legal proceedings are never broadcast live, and the court of public opinion is just a metaphor – the public does not actually have a judicial status.
So at the end of the day, while Netanyahu and Trump have a right to demand fairness, there are rules that govern what fairness means in formal proceedings. Whichever “side” one is on, it is these laws – not populist rhetoric – that will determine these two leaders’ fates. •