Why is Holmes testimony private after public impeachment hearings started? It's standard, legal experts say

Ryan W. Miller and Nicholas Wu, USA TODAY

WASHINGTON – David Holmes, the State Department official who overheard a key conversation between President Donald Trump and a U.S. ambassador, was expected to give private testimony Friday, continuing closed-door interviews even as members of Congress hosted a public hearing in the U.S. Capitol.

Republicans and Democrats have sparred over the closed format of the depositions, with the GOP slamming them as "secret" and part of a "Soviet-style" inquiry. Democrats argue the closed-door depositions are essential to prevent the coordination of witness testimony and to limit grandstanding during public sessions. 

Legal experts disagree with Republicans' assessment, saying private depositions are standard practice. 

Despite Holmes' testimony being behind closed doors after the public process began, the practice is not secretive at this stage of an impeachment inquiry, says Frank Bowman, a law professor at the University of Missouri who has written a book on the history of impeachment.

"Any investigative body hearing a witness for the first time would and should do so privately – particularly when, as may be true in this case, classified matter may be discussed," Bowman said.

Holmes, counselor for political affairs at the U.S. Embassy in Ukraine, is a witness to key events in the impeachment inquiry and is likely to reveal further details about a phone call in which he allegedly heard Trump ask U.S. Ambassador to the European Union Gordon Sondland about " the investigations."

Holmes is an aide to Ambassador Bill Taylor, the top U.S. diplomat in Ukraine, who testified Wednesday that one of his aides overheard the phone call between Trump and Sondland. House Intelligence Committee Chairman Rep. Adam Schiff, D-Calif., confirmed after the hearing that the aide was Holmes.

Trump has denied the existence of the call Holmes is said to have heard.

"I know nothing about that," Trump told reporters Wednesday. "First time I've heard it...I don’t recall. Not at all. Not even a little bit."

More: Republicans say Trump impeachment probe is happening in 'secret,' but 47 GOP lawmakers have access

Why the testimony is private 

More than a dozen witnesses testified with lawmakers from both parties behind closed doors. Transcripts of many of the closed-door testimonies have since become public. Three witnesses have testified in public so far, and eight witnesses are scheduled to testify in public next week. 

Holmes could follow a similar path, regardless of the fact that his first testimony behind closed doors occurred after the public hearings started, and it would be in line with standard investigative procedures, said Margaret Taylor, a fellow in governance studies at the Brookings Institution think tank.

"When you're doing an investigation, you want to figure out what the person knows and doesn't know," Taylor said. 

When a prosecutor in a criminal trial calls a witness, they meet with them before to learn what their public testimony will consist of, she said as an example. 

"One of the goals (of a public hearing) is to lay the case and facts out in a way that Americans can understand," Taylor added. Starting with a public hearing before a private one "could be a little chaotic because people don't have a sense for what he knows," she said.

The three officials who have testified publicly in the impeachment inquiry all went before lawmakers in a closed-door setting first. Friday was expected to be Holmes' first appearance before the committees.

The private nature of the hearings also follows past examples, said Michael Gerhardt, a law professor at the University of North Carolina at Chapel Hill who has also written books in impeachment.

For two years during the administration of former President Richard Nixon, House and Senate committees were looking into the Watergate scandal before any formal impeachment inquiry, Gerhardt noted. Ken Starr's office took four years of closed-door investigating before a referral was made to the House in the impeachment of former President Bill Clinton.

"In the current situation, the only fact-finding is being done in real-time, both before in closed-door hearings (at which Republicans were in attendance) and now before the public," Gerhardt added.

Impeachment inquiry rules did not say closed hearings would end 

The impeachment inquiry rules passed by House Democrats on Oct. 31 did not specify an end to the closed-door hearings. 

Instead, it allowed for both parties to compel the testimony of witnesses in depositions and laid out a way for the transcripts of depositions to eventually be made public. 

Republicans, however, still disagreed with the practice. 

In his opening statement Friday, Rep. Devin Nunes, the ranking Republican on the Intelligence Committee, said he was glad to hear a witness in public for the first time on Wednesday, after "the Democrats staged six weeks of secret depositions in the basement of the capital like some kind of strange cult." 

Contributing: Ledyard King  USA TODAY

This article originally appeared on USA TODAY: Trump impeachment inquiry: Why a closed hearing during public phase?