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Trump made two tweets (here and here) which (on a surface reading) would seem to be him ordering the complete declassification of all documents related to the Russian investigation. In response, several FOIA suits were filed demanding those unredacted documents. The DoJ responded "not so fast, that's not what Trump meant", and now Mark Meadows, Chief of Staff, has declared under oath that Trump told him that wasn't what Trump meant.

My question is: isn't this hearsay? IANAL, but this doesn't seem to fall under any of the hearsay exemptions.

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Yes, it is hearsay.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Fed. Evid. R. 801.

Trump's statement about what his tweets meant was made out of court, and the government is offering it to prove what Trump's tweets meant, as ordered by the court. It is therefore hearsay.

Although not all hearsay is inadmissible, I see no exception to the rule that would cover this declaration. The first three exceptions under Rule 803 are close, but they only apply to statements made very soon after the events being testified about. The declaration indicates that Trump's statements to Meadows came about two weeks after his tweets, making these exceptions inapplicable.

Under normal circumstances, this declaration would not be admissible evidence of what "the President indicated" regarding his tweets. It's not clear why the court was willing to accept hearsay on this question, but it may be that the plaintiffs consented to this procedure, or that the court is making special accommodations because it's dealing with the president.

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  • "the government is offering it to prove what Trump's tweets meant." Cite? Oct 23, 2020 at 3:05
  • Order, Leopold et al. v. U.S. Dep't of Justice, No. 1:19-cv-01278-RBW at 1 (D.D.C, Oct. 16, 2020) (ECF #111).
    – bdb484
    Oct 23, 2020 at 3:08
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    Um. I did post a link. It's in the answer, but here it is again: courtlistener.com/recap/gov.uscourts.dcd.206853/…. You'll see the document is not 7,500 words; it's two pages. And I even told you which of those two pages to look at. It sounds like maybe you don't know how to read a case citation? If you go to a law school website, you should be able to find resources on how to create and break down case citations so you don't end up in the wrong place like this.
    – bdb484
    Oct 23, 2020 at 3:18
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    @accumulation see the “at 1”? That directs the reader to the specific page within the document.
    – A.fm.
    Oct 30, 2020 at 14:21
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    The hearsay statement would be admissible by the FOIA plaintiff as an admission of a party-opponent. Also, if the party was not the President himself, but the U.S. government (as is likely) the declaration is really an authorized agent's statement of the entity's intent and the statement that the President said it is evidence of the agent's authority rather than evidence regarding the truth of the matter asserted (the only circumstance in which the hearsay rule applies).
    – ohwilleke
    Oct 30, 2020 at 23:41
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You would think so, but no

While at first glance, President Trump sending a staff member to testify under oath in his place (to nullify any personal risk of perjury?) appears to epitomize the concept of "hearsay"--

a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement

--there are some subtle but important distinctions and exceptions in play. I'm going to list them off in increasing order of relevance.

FOIA penalties are civil, not criminal

The official DOJ website lists off the penalties for Freedom of Information Act violations:

The court may award reasonable attorney fees and other litigation costs against the government when the complainant substantially prevails. See 5 U.S.C. Sec. 552(a)(4)(E).

Action Against Individual Employees: Sanctions may be taken against individual agency employees who are found to have acted arbitrarily or capriciously in improperly withholding records. Additionally, the court must award attorney fees and other litigation costs against the government.

When the statutory requirements are found by the Court to have been met, the Merit Systems Protection Board (MSPB) must promptly initiate a proceeding to determine whether disciplinary action is warranted against the office or employee who is primarily responsible for the withholding. The MSPB, after investigating and considering the evidence, submits its findings and recommendations to the agency concerned which then is required to take the corrective action recommended by the Board. See 5 U.S.C. Sec. 552(a)(4)(F). Additionally, there now exists independent jurisdiction for such MSPB investigations under 5 U.S.C. Sec. 1206(e)(1) (1982).

Failure to comply with a court order to produce the records in question may also result in punishment for contempt for the responsible employee. See 5 U.S.C. Sec. 552(a)(4)(G).

So the strongest penalty against any individual government official who violated FOIA would be losing their job, or civil contempt of court. In principle the prohibition against hearsay applies equally to civil cases as criminal ones; in practice, because the stakes are lower, courts may take a somewhat looser attitude towards hearsay in civil cases than they would in a similar criminal case.

Rule 807(a), "Residual Exceptions"

Rule 807(a) gives courts large latitude to determine whether or not to admit hearsay evidence:

(a) In General. Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804:

(1) the statement is supported by sufficient guarantees of trustworthiness–after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and

(2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.

In this situation, the presiding judge, Reggie Walton of the D.C. District Court, clarified what he would consider "sufficient guarantees of trustworthiness":

U.S. District Court Judge Reggie Walton issued the rare order to the White House last week after expressing dissatisfaction with a previous explanation submitted by the Justice Department’s top career official, Associate Deputy Attorney General Bradley Weinsheimer. Weinsheimer said he had checked with an unidentified official in the White House counsel’s office and determined that no new declassification was triggered by Trump’s latest tweets.

However, Walton said given Trump’s suggestions of a rogue element undercutting his orders, some assurance directly from the president or someone who had spoken to the president was necessary.

As Meadows had, one presumes, literally spoken to the president, this satisfied the presiding judge's own explicit standard of "sufficient guarantees of trustworthiness" for when hearsay may be admitted into evidence.

Rule 807(a)(2) is also relevant here, in its caveat that hearsay may be accepted into evidence when it is "more probative...than any other evidence that the proponent can obtain through reasonable efforts". Arguably, forcing the POTUS to neglect his duties running the country and "ending the pandemic" long enough to testify in what is, in many ways, a run-of-the-mill FOIA case, would take too much effort to be "reasonable". Which brings me to the next point:

Rule 804(a)(1) and Rule 804(b)(5), "Unavailability of the Declarant"

Rule 804(a)(1) discusses a specific exception to the hearsay rule when the declarant can't or won't personally testify:

(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:

(1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies

As POTUS, it makes sense that Trump would have some degree of privilege or immunity from being deposed. If a sitting President could be dragged into court at will over any government litigation, no matter how mundane, to personally testify, it would be impossible to perform the functions of their office.

Think about all of the live issues winding their way through the courts right now that Trump has tweeted about. Now, imagine the demands on his time if he was dragged into court to testify regarding every single one: "Sorry Angela Merkel, I have to cancel our international summit this year, I'm giving a live deposition in 50 different court cases in the next three weeks and I don't have time to do 'foreign policy' right now. Hope no new World Wars break out! Good luck!"

Of necessity, a POTUS has to be permitted to delegate 99.9% of legal representation on matters of public policy to other Executive Branch officials, when it comes to who actually needs to be physically present in court. And since he is privileged from personally testifying, that means exception 804(b)(5) applies:

(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

....

(5) [Other Exceptions .] [Transferred to Rule 807.]

We discussed how Rule 807 applies in this circumstance up above. But I want to circle back to the idea that the President has to be able to delegate statements of official policy to other authorized government representatives, such as Meadows, because of the clinching exception:

Rule 803(8)(A)(i): Public records of governmental policy aren't excluded by the hearsay rule

Rule 803(8)(A)(i) tells us that:

  • statements of public policy (such as, whether the government is going to declassify, or has already declassified, every document relating to the Russia investigation, specifically including Mueller report and FBI interview redactions)

  • made by public offices or their official representatives (such as the POTUS's chief of staff, authorized to speak on behalf of the POTUS, clarifying the Executive Branch's stance on declassification)

are not excluded by the hearsay rule:

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

....

(8) Public Records. A record or statement of a public office if:

(A) it sets out:

(i) the office’s activities

This makes sense given the purpose of the rule against hearsay. It's supposed to prevent innuendo and rumor from sneaking into the factual record when the facts are in dispute: "I heard the defendant's mom say the defendant said he did it," related by the defendant's mom's bingo buddy, would deservedly raise some eyebrows around the bingo table, but isn't the kind of solid evidence an impartial trial requires.

Statements of public policy and government action by public officials, on the other hand, have a lot more authority and credibility than what a friend of a friend of the defendant heard the friend say the defendant said. Meadows isn't (just) some random golf buddy of the President who overheard what the President was thinking when he made these tweets; he's the President's official delegate to the court, conveying the Executive Branch's official position on declassification. Such official statements are ordinarily presumed maximally trustworthy and reliable, at least partly for logistical reasons. Similar to how we can't ask Trump to cancel all the COVID task force meetings to clear his schedule and testify about some tweets, we can't drag every government officer who makes an out-of-court official public statement or record into court to certify it--at least, not every single time. The judicial branch of the government takes the word of other branches of the government mostly at face value, and does not consider public records or statements in an official capacity as "hearsay" to be excluded from evidence.

So the TL;DR version is:

No, Meadows coming into court to convey this statement on behalf of his boss would not be excluded by the hearsay rule.


Significantly, statements or records regarding policy might be excluded as hearsay, per 803(8)(B), if the opposition demonstrates that the statement or record is somehow fishy or unreliable: "(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness." But in this instance, in order to demonstrate a "lack of trustworthiness", the plaintiffs in the case--BuzzFeed, CNN, and the Electronic Privacy Information Center--would have to show that the government was actually declassifying and unredacting all material related to the Russia investigation, contrary to what Meadows claimed in court. Since the government is not actually doing this, the President's social media rants notwithstanding, the plaintiffs would be unlikely to prevail if they tried to use 803(8)(B) to get Meadows' testimony excluded as hearsay.

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    This answer is wrong at every step. (1) The civil/criminal distinction appears to be invented. (2) The residual exception is an exception to the rule against hearsay; you can't use it if the statement isn't hearsay. (3) Trump's testimony isn't privileged, and even if it were, the fact that he's "unavailable" only triggers a different set of exceptions, none of which you've suggested would apply. (4) The hearsay exception for public records applies a conjunctive test, and you've only applied one of the four compenents (and again, if it applies, it means the statement is hearsay.
    – bdb484
    Oct 30, 2020 at 17:12
  • @bdb484 Rereading my answer, I think your confusion stems from the distinction between “hearsay”, which Meadows’ statement technically was, and “excludable hearsay”, which Meadows’s statement definitely was not. I could have phrased that more clearly at certain points. Also, 803(A) clearly applies a disjunctive test, not a conjunctive one; and, FOIA penalties are for sure civil and not criminal. That is a legal fact, not a distinction I just “invented”, as you seem to think? Oct 30, 2020 at 19:18
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    I would argue that the party was not the President himself, but the U.S. government and that the declaration is really an authorized agent's statement of the entity's intent with the portion of the statement that the President said being offered as evidence of the agent's authority to take that position on behalf of the government, rather than evidence regarding the truth of the matter asserted. The hearsay rule excludes hearsay only if it is offered for the truth of the matter asserted.
    – ohwilleke
    Oct 30, 2020 at 23:45
  • @RiversMcForge I've also sloppily worded. 803(a) is disjunctive, but it's conjunctive with 803(b). I think there's a pretty tidy argument to make that the circumstances indicate a lack of trustworthiness, as the statement says that the president said "X," when they already have evidence of him saying "not X."
    – bdb484
    Oct 31, 2020 at 2:40
  • @bdb484 I addressed the conjunction with 803(b) in the footnote: to prove untrustworthiness they would have to show further evidence beyond the tweets that the official government policy was total declassification/unredaction of all Russia material. Oct 31, 2020 at 2:49
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I'm going to copy the second paragraph of bdb484's answer.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Fed. Evid. R. 801.

This means that whether something is hearsay is dependent not only on the content of the statement, but the purpose for which it is introduced. If this statement is introduced in furtherance of proving that this is not what Trump meant, then it is hearsay. However, if it is introduced to as evidence for the claim "Trump said that this is not what he meant" itself, then it is not hearsay. If there is a dispute as to what Meadows believed Trump's intent was, the statement is not hearsay. If a party asserts that there was not clear messaging, and Trump was issuing contradictory and confusing statements, then Meadow's statement is not hearsay.

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    – Pat W.
    Oct 23, 2020 at 9:25

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