One emerging line of defense by President Donald Trump and his media allies in the impeachment saga is that the continued anonymity of the whistleblower, who filed a complaint about Trump’s phone call with Ukraine’s president, is itself a violation of Trump’s rights — specifically, the Sixth Amendment right of the accused to confront their accuser.
On Saturday night, Fox News host and major Trump booster Jeanine Pirro declared on her show: “I was in the courtroom for 30 years. And, I mean, people get the right to confront your accuser, the right to cross-examine, the right to hear all the evidence, the right to — none of that is happening here.”
And chief national correspondent Ed Henry, who is part of Fox’s purported “news” division, brought up this same issue during a Fox & Friends Weekend discussion of whether the original whistleblower’s identity should be publicly revealed.
And Trump himself tweeted early on in this whole scandal:
There are, of course, some holes in this theory. Trump has already released the memorandum of his phone call with Ukrainian President Volodymyr Zelensky, in which he asked Zelensky to work with Trump’s personal attorney Rudy Giuliani and Attorney General William Barr to investigate Democratic presidential candidate Joe Biden. And now multiple other witnesses have corroborated that foreign aid to Ukraine was held up under this arrangement. So by now, the case no longer stands on just the original whistleblower complaint. There are plenty more accusers to go around.
But a further point: The Sixth Amendment doesn’t actually apply here, because it relates to criminal trials, not to impeachments in the House of Representatives.
Mollie Hemingway, senior editor at The Federalist and also a Fox News contributor, attempted to start an argument Monday night on this issue with Rep. Justin Amash (I-MI) — a Trump critic who left the Republican Party a few months ago, and who voted in favor of the impeachment inquiry process last week. Replying to a tweet in which Amash criticized Republicans for wanting to expose the whistleblower, Hemingway claimed, “The Constitution specifically provides for the right of the accused to meet his accuser.” Amash countered that the amendment is applicable during a trial in criminal prosecution, and even if it might be applied in an impeachment, its place would be in the Senate trial. (Impeachment in the House is analogous in some ways to a grand jury indictment.)
Their argument continued into the night, and Amash ultimately concluded: