There’s always talk about the number of attorneys in the U.S. Senate – currently 49.
Now, as we approach a near certain Senate impeachment trial of President Donald Trump in January 2020, one of the three doctors in the U.S. Senate – Sen. Rand Paul (R-KY) — has offered the most important legal argument about how Republicans should proceed: subpoena the so-called “whistleblower” and make him testify in the Senate.
The guy who lit the fuse of the current Democratic goose chase to undo the results of the 2016 presidential election is not a whistleblower as that term is defined in the federal Whistleblower Protection Act.
Nor is there any legal guarantee of anonymity, despite the fact that the media is treating him like a rape victim rather than as the partisan tattletale that he is.
The Whistleblower Protection Act allows federal employees who believe they have been subjected to reprisal because of protected disclosures may file a petition with the Office of Special Counsel, pursue an individual right of action before the Merit Systems Protection Board (MSPB), appeal to the MSPB regarding an agency’s adverse employment action against the employee or initiate a grievance proceeding pursuant to negotiated grievance procedures. The goal is for a prevailing whistleblower to be reinstated with back pay, costs, damages, and attorneys’ fees.
Nowhere in the law is there any mention of anonymity and, in fact, the law requires that the whistleblower take advantage of these legal protections in his or her own name.
Under federal law, then, our person-of-interest accuser is not a whistleblower. He is a tattletale and a gossip. But to be polite, let’s call him “the Accuser”.
There is no assertion or indication that the Accuser has been in any way punished in his employment by virtue of his accusations, such that the WPA is not even applicable to this person or the facts of this case.
The Accuser is allegedly Eric Ciaramella, a holdover from the Obama administration and a registered Democrat with ties to several Democrats, including former Vice-President Joe Biden, Obama’s former National Intelligence Director James Clapper, and Alexandra Chalupa, a Ukrainian-American who supported Hillary Clinton, who led an effort to link the 2016 Trump campaign to the Russian government. Despite the fact that his name has been widely circulated, Mr. Ciaramella has yet to deny that he is the Accuser.
Sen. Paul posits that for the impeachment to be credible, the President has certain rights under the U.S. Constitution, which must be protected, among them, the right to confront his accusers, including the person who provided the fodder for this process in the first place. Since that has not happened during the House proceedings, the Senate can and must ensure that the Senate actually provides to the President the Constitutional protections the House Democrats have trampled.
While some lawyers have argued that there is no guaranteed Sixth Amendment right during impeachment proceedings, Dr. Paul understands better than the lawyers that the American people know enough about the U.S. Constitution and American legal process to understand the basic constitutional right afforded to all who are accused in this country:
“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 defense.”
– Amendment VI, United States Constitution
President Trump’s attorneys must be able to cross-examine the Accuser – to explore the actual knowledge, motives, and biases of this person who used his position of trust in the Trump White House to undermine the President and start the latest chapter in the Democrats’ crazed assaults against the Trump presidency.
And just as important, the American people deserve to know who this person is, to be able to watch and hear him testify, and to understand how and why this individual managed to ignite our short national nightmare.
The report released this week by the Department of Justice Inspector General Michael Horowitz regarding the flimsy and inappropriate origins of the Russia-Trump campaign collusion hoax, underscores the significance and importance of Sen. Paul’s advice and why the Senate must examine the origins of the impeachment hoax.
Leaders at the very highest level of the Obama Administration involved themselves in a false narrative of Russia-Trump collusion and only now, more than three years later, are we able to understand how it started.
The Senate must ensure that is not repeated in the impeachment trial. The Senate trial must start at the beginning of the impeachment charade.
So, to the U.S. Senate.
Please heed Dr. Paul’s advice: identify and subpoena Accuser #1. Make him answer for what he has done. Require him to be cross-examined, so we can know who he is, what his background is, why he did what he did, what Democrat members of Congress and their staffs did with and for him, and how he managed to conjure these allegations.
It is not only the President’s Sixth Amendment rights that are at stake: the American people have a concurrent interest in seeing this Accuser confronted and cross-examined.
It is the vital first step the Senate must take in the preparations for the impeachment trial. It may not cure the partisan disease afflicting the rabid Democrats, but it will be an important tonic for the American people by underscoring basic rights enshrined in the Sixth Amendment, rights that have been denied the President and the citizenry since the beginning of this impeachment debacle.
Cleta Mitchell is an attorney and partner in the Washington DC office of Foley & Lardner, LLP.