Pollak: Impeachment Counsel Barry Berke, the Democrats’ New McCarthy

Democrats on the House Judiciary Committee, led by counsel Barry Berke, violated attorney Stephen Castor’s constitutional rights in questioning him during Monday’s impeachment inquiry hearing.

Castor, the Republican counsel on the House Intelligence Committee, was testifying alongside Democrat counsel Daniel Goldman about the findings of the Intelligence Committee’s investigation.

Judiciary Committee Chairman Rep. Jerry Nadler (D-NY) delegated questioning to Berke, even though Berke had just appeared as a witness at the opening of the hearing.

Berke berated Castor with aggressive questions, such that Republicans complained that he was badgering the witness. Several of his questions implied that Castor was not being truthful — even though Castor was not appearing as a fact witness, but to present Republicans’ arguments in response to Democrats’ 300-page report, released by Rep. Adam Schiff (D-CA) last week.

Castor was testifying under oath, under penalty of perjury. However, Berke did not testify under oath. In fact, he delivered an opening argument without being sworn in at all.

When Republicans objected to Berke’s comments about President Donald Trump’s alleged motivations, which are forbidden under House rules, Nadler said that House rules did not apply to witnesses. But when Republicans asked why Berke had not, therefore, been sworn in, Nadler said that Berke had appeared as a staff member, not a witness.

House Judiciary Committee

Berke therefore was able to question a fellow witness — one who was under oath, while he had not been.

When Republicans asked whether Castor would be afforded the same opportunity, Nadler did not reply.

Castor was appearing in an adversarial proceeding in which he was under oath, but the opposing side’s witness was not. Furthermore, that witness was able to ask him questions, which Castor had to answer under penalty of contempt.

Arguably, Democrats therefore violated Castor’s Fifth Amendment right to due process. He could lose his liberty for what he said — but the opposing witness, who was able to ask him questions, could not.

When the Democratic chair of the committee was asked to address that fundamental unfairness, or at least to refer to a rule of the House of Representatives to justify or explain it, he refused.

The tense exchange was not only bizarre. It also demonstrated Republicans’ point about the inherent unfairness of the impeachment inquiry.

But it also presented a brazen violation of the Fifth Amendment right to due process, on live television, in the U.S. Capitol itself.

When Republicans tried to question Berke, he left the hearing. As Rep. Louie Gohmert (R-TX) noted wryly, Berke “absconded.”

Rep. James Sensenbrenner (R-WI) said that the House Intelligence Committee’s inclusion of private phone logs in its report was an abuse that exceeded those of the McCarthy era.

The same was true of Berke’s abuse, enabled by Nadler and the Democrats. Congress has not seen such a brazen violation of a witness’s constitutional rights since the McCarthy hearings of the 1950s.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He earned an A.B. in Social Studies and Environmental Science and Public Policy from Harvard College, and a J.D. from Harvard Law School. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. He is also the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.