Attorney Greg Jarrett recently wrote, “It is Pelosi and Schiff who are abusing the power of impeachment in their latest ‘witch hunt.’” This is wildly historically inaccurate. Jarrett should immediately apologize to the memory of the prosecutors of the 17th-century Massachusetts witch trials.
This is because House Speaker Nancy Pelosi and Rep. Adam Schiff are currently running their Ukraine impeachment farce with far less due process than the superstitious and backwards legal system offered the “witches” of Salem.
Below are a few examples of how Jarrett has unfairly slandered the jurisprudence of 17th-century Massachusetts.
1. The Right to Be Informed of the Nature of an Accusation
In 1692, the “witches” were tried under the Witchcraft Act of 1604, or, in long-form, “An Act Against Conjuration, Witchcraft and Dealing with Evil and Wicked Spirits,” a felony. Then-President Nixon stood accused of “payment of substantial sums of money for the purpose of obtaining the silence or influencing the testimony of witnesses,” in violation of federal witness tampering statutes. President Bill Clinton stood accused of perjury, lying under oath.
What law is President Trump accused of violating during the Ukraine phone call? The accusations against Trump are far vaguer and never seem to relate to any statute, law, or provision of the Constitution. What little explanation there is for the “law” the president broke is extremely vague.
One fanciful theory is that the president violated 52 U.S.C. §30121 prohibiting a candidate from “soliciting” from a foreign entity a “thing of value” (meaning dirt on a political opponent) in connection with a federal election. This is the same ridiculous argument that was made in the Russia collusion hoax when Donald Trump Jr. supposedly solicited Russians for dirt on Clinton (never mind the “Russians” were in partnership with the firm Clinton hired to frame Trump).
That argument failed in the Russia hoax for the same reason it’s wrong now: Asking for information is never a “thing of value” for purposes of election law.
Witches in 1692 knew exactly what law they stood accused of violating because New England witch hunters respected this principle of due process more than Schiff and Pelosi do. The president’s counsel noted this deficiency in this letter, indicating that among the many unfair aspects of the procedures, the committee failed to observe “the right to be informed of the law of the charges against you.”
2. The Right to Public Hearings
We have reason to believe the witch prosecutors held public trials because a man by the name of Cotton Mather recorded accounts of many of the trials. In contrast, as noted by the Wall Street Journal, Schiff is attempting to conduct “secret” hearings to cherry-pick and leak evidence (often with much exaggeration).
Schiff used a similar technique during the Russia collusion hoax, claiming (falsely) that he had seen direct (but secret) evidence that the president colluded with Russians. It’s highly problematic when the chairman of the House intelligence committee smears the president by making a non-factual claim about secret intelligence.
3. The Right to Confront and Cross-Examine Witnesses
It’s not clear that the accused witches ever had the chance to cross-examine their accusers. So on that front, Jarrett’s comparison might be appropriate. However, the historical record indicates that the accused were present during the trial and given the opportunity to listen to what was being said about them.
In contrast, Schiff is running a sort of kangaroo court in which the public is only allowed to hear third-hand accounts of secret witnesses. The identity of both leakers remains secret even as their allegations are being aired in the public. Again, Schiff is using procedures that witch hunters in the 1600s would consider unfair.
Other complaints include: Denying witnesses the right to counsel, denying the president the opportunity to be represented by an attorney at the proceedings, and denial of the right of the minority to cross-examine witnesses or call their own witnesses.
4. A Legal Predicate
History records that when an individual was accused of witchcraft, her case would be heard by a duly appointed local magistrate with jurisdiction. Later, the colony governor authorized a specially created Court of Oyer and Terminer.
In contrast, in the Ukraine farce, the House intelligence committee (which does not have obvious jurisdiction) is leading an inquiry not authorized by the House. The president’s attorney points to the absence of a vote on impeachment by the full House as a basis for challenging the jurisdiction of the inquiry. But it’s actually far worse than that.
The House has voted on whether to impeach this president, and three times (December 6, 2017, January 19, 2018, and July 17, 2019). The House voted “no” on each of these attempts to impeach the president. In other words, the House three times voted against what Schiff is currently doing. And he’s doing it anyway.
5. The Presumption of Innocence
Most of the accused witches were found not guilty. Of the approximately 200 people who were accused, 19 were found guilty. While the best result would have been zero, it provides some measure of redemption to the process that the outcome was not always predetermined at the time of the accusation.
Contrast this to the treatment of Trump and the effort to impeach him that began before he even obtained the presidential nomination. Whether it’s Russian collusion, daring to contradict intelligence employees, emoluments, or Stormy Daniels, the verdict remains “guilty” even as Democrats endlessly search for a charge to match their pre-determined outcome.
6. Spectral Evidence
The early witch trials relied on “spectral evidence,” a type of evidence only visible to the witness such as dreams or visions. In November 1692, Massachusetts passed legislation creating the Superior Court of Judicature, which would later disallow spectral evidence as unreliable.
In contrast, Schiff seems to have revived the practice of creating evidence out of his dreams, visions, and fantasies. He famously used a public hearing to paraphrase the president’s phone conversation with the president of Ukraine.
Either the chairman intended for the public to accept his version as factual, in which case he used his position to mislead the public, or he made a big joke out of something that he should have been treating seriously. In either case, it would have not passed due process muster in 17th-century witch trials. By the way, Schiff moonlights as a screenplay writer for those who find his fantasies irresistible.
It’s fascinating that Pelosi cloaks herself in the “rule of law” when she cannot muster minimum principles of due process that attended the witch trials of Salem almost 100 years before the U.S. Constitution. Since the witch trials, our founders codified many of these principles in the Sixth Amendment to the Constitution (a public trial, public witness testimony, the right to know the crimes one is accused of, the right to confront and cross-examine witnesses, etc.)
Thus, calling the Ukraine inquiry a “witch trial” is literally an insult to witch trials.