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The GloriaGate Tapes are Admissible (Sometimes)

July 6, 2005

The following is based on the notes I took when Prof. Hilbay gave his talk on this topic at last week’s forum on the GloriaGate Tapes.  All errors are mine. 

Prof. Florin Hilbay shared his views on the admissibility of the Gloriagate Tapes and concludes that the tapes would be admissible, notwithstanding RA4200, only in an impeachment proceeding when the Senate is sitting as an impeachment court.

He first examined the Constitutional provision on the privacy of communications and concludes that the right is not absolute.  The Constitution says that “upon the lawful order of the court” the privacy of an individual may be breached and the resulting evidence admissible.  He argues for a liberal interpretation of the word “court” that includes the Senate sitting as an impeachment court.   Others have just assumed that the Constitution refers only to the regular courts but he says there is no take such a limited view.

He then says:

“I’ll give you a textual argument.”  Although RA4200 only allows the court to authorize wiretaps before the taps are made, the same limitation is not found in the text of the Constitution.  The Constitution does not prohibit the “court” to admit a wiretap that has been made without prior authority.

“I’ll give you a functional argument.”  Courts are always open and continually operating which gives law enforcement officers a full opportunity to secure a wiretap warrant before the fact.  In contrast, the Impeachment Court is an ad-hoc body that is in no position to give the same authority to collect evidence.  An Impeachment Court has to contend with the evidence already collected and available.  This justifies the Impeachment Court’s wide discretion in allowing the presentation of evidence — even those illegally obtained.

“I’ll give you an historical argument.” The 1987 Constitution is replete with several provisions that underscore the primary importance of transparency in government.  Admitting the tapes during an impeachment proceeding would give life to those provisions.

“I’ll give you a structural argument.” The Constitution provides  no standard of evidence nor any definition of what constitutes impeachable offenses. Under these conditions, applying the Rules of Evidence would be improper.  The Impeachment Court should be given a free hand in making determinations respecting these issues.  It should not be constrained by the law or the Rules of Court.

Posted by JJ Disini at 6:20 pm | permalink

Previous Comments

Boss,

These are very incisive comments drawn from various constitutional interpretation perspectives. I think we'll agree that the Senate would function as a court, and Davide put the word "subpoena" into the public consciousness and there was a lot of debate as to what standard of proof had to be hurdled to impeach, and how the Rules of Court were to be applied.

However, is this but the first part of the discussion? How do you tie this into RA 4200, as you were ably discussing from the free speech perspective some time back?

Posted by Oscar at July 9, 2005, 8:42 pm

[1] Hi Oscar,

Prof. Hilbay limited his discussion to the admissibility of the tapes before the impeachment court.

I've been thinking about RA4200 for some time and I believe there are no exceptions nor modes by which illegal wiretaps can be "sanitized" for admission. Even if the text of statute may permit it, policy considerations weigh against allowing RA4200 bypasses. But we have to consider that even if the tapes are not admitted into evidence, our judicial system allows for "conditional admission" where the judge hears the tapes then later decides whether to admit them or not. My guess is that having listened to the tapes a bias will be created in the judge's mind regarding the accused's guilt even as he rules that the tapes are inadmissible. In this sense, the tapes are still damaging even though illegal and inadmissible.
-jj

Posted by JJ Disini at July 10, 2005, 6:55 pm

pls. e-mail me the script of the wiretapping case because it is our project

Posted by czarina at July 23, 2005, 3:01 pm

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