The Whistle-Blower Passes the ‘Fanful Test’

When I worked for the Office of Independent Counsel, which was investigating President Bill Clinton, we used something I called the “Fanful test” to assess the credibility of an allegation.

Monica Lewinsky was a key witness, and her believability and credibility were critical to any assessment of the facts. There came a day when Lewinsky started telling us about her personal encounters with Clinton. At one point, as she told the story, the president interrupted one of their encounters to take a phone call from someone whose name Lewinsky recalled as “Fanful.”

That gave us a data point that we could check against extrinsic evidence. Sure enough, when we pulled up the White House telephone records for that day, it turned out that Clinton had received a call from Alfonso Fanjul, a well-known Democratic donor who was a sugar magnate from Florida. By demonstrating, before the evidence was public, knowledge that was unique and confirmable, Lewinsky showed that her recollection was inherently credible.

The Ukraine whistle-blower has earned the same credibility. The complaint he filed described the general tenor and content of President Donald Trump’s call to Ukrainian President Volodymyr Zelensky. Those details were, to a very large degree, confirmed when the memorandum record of the telephone conversation was released. Likewise, the complainant described how memorandum records of this sort had been moved to a code-word-secured server system. That fact, too, has now been confirmed by the National Security Council.

Trump and his supporters have argued that the complaint is hearsay, and therefore not credible. That argument has several flaws. First, and most obviously, secondhand accounts (known in the law as hearsay) are perfectly good evidence of events in the normal course of our lives. If your spouse comes home and tells you that your son said he would be coming over for dinner, you accept that and rely on it in planning. And you do that even though what your spouse has told you is classic hearsay—it is a report to you of what your son has said, and you are accepting that it is true.

Note that embedded in this are really two different assessments of truth. The first is whether or not your spouse is accurately reporting what your son has said. And that credibility determination is about whether or not you think your spouse would lie to you about what your son said—it has nothing to do with hearsay, and it is all about whether or not your spouse is in the habit of telling you the truth.

The second assessment is where the hearsay comes in—it’s the question of whether or not your son is really planning to come to dinner this weekend. That assessment turns not on your spouse’s credibility, but on whether or not your son is in the habit of telling falsehoods to his parents.

So, the second error made by Trump’s defenders is that assessing the whistle-blower’s credibility doesn’t hinge on hearsay. It is, of course, theoretically possible that the whistle-blower’s friends in the intelligence community lied to him. But his own credibility rests on whether or not we think he is truthfully reporting what they said. And on that score, the whistle-blower’s credibility is objectively well supported. He passes the Fanful test with flying colors.

Because most everything the whistle-blower has said has proved accurate, the natural and reasonable conclusion is that the complaint is accurate in recounting what the other third parties have said (though their own claims, in turn, will need to be assessed independently).

The final flaw in the Trumpian defense is that he speaks of hearsay as if it were inferior evidence of a fact or didn’t matter and could be disregarded. In fact, normal human beings make decisions—often decisions of great import—in their everyday lives based on hearsay. Hearsay is not inherently less reliable than other forms of evidence, and in many contexts is actually more reliable than statements of people who say they have direct experience of events.

Indeed, hearsay is often the basis of extremely significant law-enforcement actions. A search warrant can be based on hearsay. A criminal investigation can be derived from hearsay. And plenty of hearsay evidence is admissible at a criminal trial. Our reluctance to credit some hearsay in criminal trials is honored more in the breach than it is in the practice.

Congress must take the claims of this whistle-blower to heart. And to the extent that they, too, have been corroborated by subsequent events, the hearsay statements of the whistle-blower’s sources are also probative and relevant. There is every reason to believe they are true, and no basis to think otherwise.

Image credit: mark reinstein