Editor’s Note: In this weekly column “Cross-Exam,” Elie Honig, a CNN legal analyst and former federal and state prosecutor, gives his take on the latest legal news. Post your questions below. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer reader questions on “CNN Newsroom with Ana Cabrera” at 5:40 p.m. ET Sundays.
When Bill Taylor raises his right hand and swears to tell the truth so-help-me-God before the House Intelligence Committee on Wednesday, he will make history. For only the fourth time in United States history, full-blown impeachment hearings will be underway in the House. And no person is better suited to set the stage for House Democrats than Taylor. He is the perfect leadoff witness.
When prosecutors prepare for trial, they typically create a document called an “order of proof” — a sequential listing of all the witnesses and evidence they plan to introduce to the jury. Not surprisingly, ordering matters and first impressions matter most. That is particularly true in an impeachment proceeding, where public interest and opinion are paramount.
As CNN chief media correspondent Brian Stelter noted, “on one level it is a television show,” and the first episode matters most to capture the audience’s attention.
Taylor has the three things every prosecutor wants in a witness: He is credible, he is backed up by independent evidence and his testimony goes to the heart of the matter.
First, it is difficult to conceive of a witness with more credibility, qualifications and gravitas than Taylor. He has an unassailable record of heroic military and diplomatic service to the United States over five decades. He is non-political and has served in every administration since 1985. The Trump administration called him out of retirement to lead the US embassy in Kiev.
Somehow, inexplicably, Trump nonetheless launched an attack at least aimed in Taylor’s general direction.
The day that Taylor testified behind closed doors, Trump tweeted that “Never Trumper Republicans” are “human scum.” Big mistake. Trump’s effort to slime Taylor was so offensive and preposterous that Taylor’s military colleagues launched a blistering rebuttal, citing Taylor’s heroic actions in combat and calling Taylor a “man of honor,” “role model” and “the best of our Department of State.”
This is not a man who Republicans would be wise to attack, and it will be exceedingly difficult for them to argue that he has some nefarious agenda.
Second, Taylor has the receipts. He is backed up by independent evidence generated at the time of the events at issue. Taylor testified that he took meticulous notes throughout his dealings with other administration officials on Ukraine. Contemporaneous notes can confirm crucial details and establish that a witness’s account of past events is true and reliable.
Beyond his handwritten notes, Taylor made a contemporaneous electronic record. He texted to European Union Ambassador Gordon Sondland, “Are we now saying that security assistance and WH meeting are conditioned on investigations?” prompting Sondland’s infamous two-word response: “Call me.”
Later, Taylor reiterated by text his view on the impropriety of the administration’s effort to pressure Ukraine: “As I said on the phone, I think it’s crazy to withhold security assistance for help with a political campaign.” Given these texts, there is no way to argue credibly that Taylor fabricated or embellished his concerns after the fact.
Finally, Taylor’s testimony goes to the core of the Ukraine scandal, perfectly elucidating why the conduct of Trump and others around him was improper. Taylor testified to the House Intelligence Committee that:
– Trump’s personal counsel Rudy Giuliani, Energy Secretary Rick Perry, Ambassador Kurt Volker and Sondland operated an “irregular, informal channel of U.S. policymaking with respect to Ukraine”
– “[T]he security assistance [to Ukraine] got blocked by this second channel.”
– “To stop it [the security assistance], to hold it, for no apparent reason that I could see, was undercutting the longstanding US policy.”
– “I think it was becoming clear to the Ukrainians that, in order to get this meeting that they wanted, they would have to commit to pursuing these investigations [of former Vice President Joe Biden and his son].”
– “That was my clear understanding, security assistance money would not come until the President [of Ukraine] committed to pursue the investigation.”
If you want to boil down House Democrats’ case to five lines, you can’t do any better than that.
Taylor’s only shortcoming is that he cannot testify about direct conversations he had with Trump. Other witnesses – including Gordon Sondland, Kurt Volker and (if they stop stonewalling and come forward with testimony) Mick Mulvaney and John Bolton – can do so.
But Taylor does not have to make the entire case by himself; he simply needs to set the table. And, ultimately, the best evidence of Trump’s conduct is his own words, as reflected in the July 25 summary transcript of his call with Ukrainian President Volodymyr Zelensky.
The stakes will be enormous when public impeachment hearings open on Wednesday. History will hang in the balance. Bill Taylor is the perfect person for the moment.
Now, your questions:
Andrew (Australia): What legal consequences could there be to publicly identifying the whistleblower?
Any person who reveals the identity of a whistleblower could face both civil and criminal liability.
Civilly, the law prohibits government officials from taking “personnel action” – such as firing or demotion – against a government employee because that employee came forward with a complaint of potential criminality or wrongdoing. Specifically within the intelligence community, another law prohibits “reprisal, or threat of reprisal” against a person because that person filed a complaint with the inspector general.
These are civil laws, so the potential penalties are administrative (including firing or other discipline of anyone who violates the law) and financial.
It also could be a crime to publicly reveal a whistleblower’s identity, depending on the intent. While the law does not specifically make it a crime to reveal a whistleblower’s identity, it would be a crime to do so if a person “knowingly uses intimidation, threatens or corruptly persuades another person” with “intent to influence, delay or prevent the testimony of any person” commits the federal crime of witness tampering.
And any person who “with the intent to retaliate [against a witness], takes any action harmful to” the witness commits the federal crime of witness retaliation.
Elijah (Idaho): If the House impeaches Trump, can the Senate majority acquit him by just voting, without citing any relevant reasons, laws or statutes?
Yes. There is no requirement in the Constitution that any senator must explain the legal, factual or political basis for his or her vote at an impeachment trial. The same is true for jurors in criminal or civil trials; in fact, trial jurors are instructed solely to indicate their ultimate verdict, and not to explain their reasoning.
That said, individual senators certainly are free to make statements explaining their votes, if they so choose. Given the gravity of an impeachment vote, and the bright light that will be on each senator, I would expect many senators to give such a public explanation.
Michael (Connecticut): Does the 2/3 standard for conviction at a Senate impeachment trial mean that ⅔ of all senators (67 senators) have to vote in favor of impeachment, or only 2/3 of those who actually show up to vote?
Article I of the Constitution gives the Senate the “sole power to try all impeachments” and provides that “no person shall be convicted without the concurrence of two thirds of the members present.”
The “of the members present” clause thus establishes that the relevant number is not ⅔ of all 100 Senators (67 senators) but rather ⅔ of those who actually show up to vote. So if, hypothetically, only 99 senators show up to cast votes, then 66 votes are necessary for removal. And if, say, 95 senators are present, then 63 votes will do the two-thirds trick.
While it seems unlikely that a senator would no-show for a vote on something as consequential as removal of the president, this minute difference could come into play if a senator or two are physically or otherwise unable to appear in Washington, DC for a vote, or if a handful of senators looking to duck a controversial vote decide to skip town.
Three questions to watch:
1. Will this week’s public testimony from Taylor, George Kent and Marie Yovanovitch move public opinion significantly, either for or against impeachment?
2. What line of defense will Trump and Republicans adopt in response to this week’s public testimony?
3. Who will House Democrats call as their next wave of public witnesses?