politics
In the Trump Impeachment process what is the legal status of notes?
<p>Let me give some background. In my life I make reports on people's homes. My insurance company forces me to use a standard report report that they issue. Why? Because if  I used my own format or my own notes and my work went to a court case, a clever lawyer could discredit my evidence by saying "you only have notes, not a formal report. That is a rough draft and isn't good [or even admissible] evidence. </p>

<p>So if we come to the Trump impeachment hearings, I think along the same lines. That witness Gordon Sondland said that he was "not a note taker". That lack of note taking was used against him in Republican questioning. But if he had taken notes [for instance Taylor brought in a notepad of what he had taken at the time] then what would have been the legal status of notes, as distinct from a formatted, final report of what a witness heard and saw?  </p>

<p>A quick answer: your analogy isn't quite right. The Constitution gives the House "the sole power of impeachment." So unlike you, their work is never "going to court." No judge is ever going to look at the evidence they used and say, "You only used notes, not a final report. That isn't good enough, or admissible."  </p>

<p>A longer answer: impeachment is not a legal process. It is a political process. The only binding requirements are those found in the Constitution. These cover who can be impeached and tried, for what, how punished and by whom. </p>

<p>All other matters of procedure are decided by each house. There are several sets of <a href="https://litigation.findlaw.com/legal-system/presidential-impeachment-the-legal-standard-and-procedure.html" rel="noreferrer">rules and precedents</a> that cover impeachment. But if the House or Senate decides to ignore these rules and make up new rules, they can. After all, Article I of the Constitution gives each house "sole power" over impeachment and trial. It also gives <a href="https://www.politico.com/magazine/story/2019/11/12/path-to-removing-donald-trump-from-office-229911" rel="noreferrer">each house the power</a> to "determine the Rules of its Proceedings." </p>

<p>You might ask, why, if impeachment is a political process, do so many people talk about it as if it was a legal process? The answer is simple: Both sides are busy trying to put their spin on what is going on in the House. If either side believes they will get more support by talking about impeachment in legal terms, that is how they will talk about it. But this spin should not hide the reality: impeachment is political. </p>

<p>That impeachment is political does not mean that it should not be guided by the same values that guide legal processes. Of course, the hearings should be fair, the President should get due process, and so on. But because they are political, no court is going to step in and assure that they are fair. </p>

<p>The only guarantee that the President will get a fair hearing and due process is also political. If enough Americans think he did not get treated fairly, or was denied due process, or what impeached unfairly, they can vote the Democrats out of office. </p>

<p>Politics is the key to understanding much of what has gone on so far in the impeachment process. For instance, for a long time, Speaker Pelosi refused to hold a vote on whether to formally start impeachment proceedings. She offered a variety of explanations for this, but the truth was that she did not want to force Democrats from close districts to have to openly vote against the President. Similarly, Republicans, who wanted to force Democrats from close districts to vote against the President, argued that it was unfair, illegal or unconstitutional to have any hearings on impeachment without such a vote. Since there are more Democrats than Republicans in the House, Democrats got to decide when that vote was held. </p>

<p>Of course, if the House does impeach, and the Senate has to try the President, since <a href="https://www.washingtonpost.com/politics/2019/09/27/if-house-impeaches-trump-mitch-mcconnells-senate-can-simply-ignore-it/" rel="noreferrer">Republicans control the Senate</a>, they will control the rules, etc. </p>

<p>The relevant phrase here should be "contemporaneous notes". Basically, by documenting something immediately after it occurs, then attacks such as "This was 10 years ago. How certain are you that you remember this accurately?" and "how do we know you didn't just make this up recently" will fail. The goal here is less for the notes to stand on their own as obviously true, but that they can <a href="https://www.newswise.com/articles/law-professor-explains-the-hierarchy-of-evidence-and-how-contemporaneous-notes-would-%E2%80%94-or-wouldn%27t-%E2%80%94-hold-up-in-court" rel="noreferrer">back up whatever testimony you are offering</a>, showing that you recall the incident as if it happened 5 minutes ago, and that you haven't recently changed your testimony to what's convenient.</p>

<p>The reason the questioning touched on this issue is that there is a <a href="https://www.nytimes.com/2017/05/17/us/politics/james-comey-memos-fbi-culture.html" rel="noreferrer">culture of note-taking</a> within many governmental organizations. It is reasonable to assume that an ambassador would have kept notes, and there are indications that Sondaland changed his testimony between the closed-door sessions and now, which would make those notes even more important to giving his testimony credibility.</p>

<p>You have an erroneous assumption that there is something magic that calling a document a “formal report” makes it more legal that whatever “notes” are. Your company wants to be sure that your written information is complete and well organized.</p>

<p>In the case of a witness recalling something, contemporaneous notes can have more value than a formal report created at some later time.</p>
