Does Trump have a right to face the whistleblower?
Short answer: no. Trump and Republicans are conflating reporting a crime with a witness, and conflating a criminal trial with impeachment.
But isn’t the fundamental right to face your accuser important?
Yes, and, if the whistleblower was a testifying witness in a criminal prosecution, then you would have a valid argument. In this case, no one yet has supplied a valid legal argument that applies to the impeachment process.
In addition, so far the whistleblower has only called in something for the authorities to look at. Finally, everything in the initial whistleblower document has already been confirmed by multiple other witnesses including Trump himself. Meaning, the need for the whistleblower to testify and the value of that testimony is low.
Sixth Amendment Analogy
Sometimes an analogy away from politics helps.
Let’s say you hear two loud bangs. You look out your window and see a body on your lawn, and five men, one of which is holding a gun. You call 911 and report what you see. Investigators interview you and you identify all five people. You explain what you saw, but you also refuse to testify. At this point, you simply reported something for the authorities to look into. If the other four witnesses can explain what happened and are willing to testify, the authorties will not need you to be a witness. But, if they ask and you decide to testify at court as a witness, the accused definitely has a right to confront you; otherwise, no.
In our analogy, let’s say the investigators find and inteview all 5 people, subjects at this point, collect physical evidence, and attempt to build a case. In this case, let’s say you are unknown to the 5 people and all five refuse to cooperate and demand to know who called in the crime. Do you think they have a right to know? The answer is no. Not until you are a witness in a criminal trial.
The authorties might try to convince you to testify as a witness to the part you saw, but if you refuse, they will have to build the case without you. Those five subjects do not have a right to confront you unless you become a witness. Furthermore, if they pressure people to find out who the potential witnesses are,
If they find only the person with the gun, and not the other four witnesses, they might ask you to testify. If you refuse, they have to proceed with their case without you.
The Right to Confront Witnesses, Impeachment, and the Constitution
Here is the sixth amendment with the relevant sections in bold:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
Article 1 gives the power to impeach to the House.
Article 1, Section 2: “The House of Representatives shall…have the sole Power of Impeachment.”
Article 1 also gives the power to convict to the Senate, and the Chief Justice presides over the trial. Article 1 also indicates that the punishment from the Senate is only removal from office, and specifically not an indictment from the justice department.
Article 1, Section 3: “The Senate shall have the sole Power to try all Impeachments. …When the President of the United States is tried, the Chief Justice shall preside…
Judgment in Cases of Impeachment shall not extend further than to removal from Office…but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
Article 2 gives Trump the authority to pardon, but clearly not in cases of impeachment.
Article 2, Section 2: “The President…shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
Finally, Article 2 adds the following specific examples, but does not say impeachment is limited to these offenses. The common understanding is that impeachment is a political remedy to remove an unfit person from office for any reason. After impeachment and removal from office, the judicial branch is free to prosecute crimes, if any.
Article 2, Section 4: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
Summary
Republicans and Trump supporters are conflating the 6th Amendment right to confront a witness in a criminal trial with the person reporting a crime and impeachment. The 6th amendment right to face your accuser is about witnesses testifying in a criminal trial. It is not about the person reporting something to authorities. The reality is that Trump and his supporters are using the identity of the whistleblower as a red herring logical fallacy, a distraction. Something for them to focus on.
