Congressional Democrats want former President Donald Trump to testify under oath due to his recent answers in response to their U.S. Senate impeachment trial brief filed earlier this week.
And if he doesn’t testify, the prosecution intends to cite that would-be reluctance as evidence of the 45th president’s guilt.
“As you are aware, the United States House of Representatives has approved an article of impeachment against you for incitement of insurrection” the letter from House Impeachment Manager Rep. Jamie Raskin (D-Md.) begins. “The Senate trial for this article of impeachment will begin on Tuesday, February 9, 2021.”
“Two days ago, you filed an Answer in which you denied many factual allegations set forth in the article of impeachment,” Raskin continued. “You have thus attempted to put critical facts at issue notwithstanding the clear and overwhelming evidence of your constitutional offense. In light of your disputing these factual allegations, I write to invite you to provide testimony under oath, either before or during the Senate impeachment trial, concerning your conduct on January 6, 2021.”
The Democratic letter goes on to reference prior testimony gathered from sitting presidents—as well as last year’s landmark Supreme Court decision which held that sitting presidents are subject to state criminal law. Of course, Trump is no longer a sitting president, so even the minor caveats contained in that high court ruling would not apply here.
“Presidents Gerald Ford and Bill Clinton both provided testimony while in office—and the Supreme Court held just last year that you were not immune from legal process while serving as President—so there is no doubt that you can testify in these proceedings. Indeed, whereas a sitting President might raise concerns about distraction from their official duties, that concern is obviously inapplicable here. We therefore anticipate your availability to testify.”
Democrats also threatened Trump that they’ll probably draw conclusions if he doesn’t accede to their request.
“If you decline this invitation, we reserve any and all rights, including the right to establish at trial that your refusal to testify supports a strong adverse inference regarding your actions (and inaction) on January 6, 2021,” the letter notes.
That threat raised the hackles of the Republican Party.
The GOP’s House Judiciary Twitter account tweeted:
Democrats: “You’re presumed guilty if you don’t testify.”
That’s not how things work in America! https://t.co/IniXvz4nF6
— House Judiciary GOP (@JudiciaryGOP) February 4, 2021
That criticism was premised on a misplaced and mistaken belief that an impeachment trial is akin to a criminal legal proceeding.
As Law&Crime has repeatedly explained, impeachment is a not a legal process. It is a constitutional process that is entirely governed by political decision-making. Impeachment is not governed by the standards of law applicable to a courtroom trial, though many aspects of impeachment appear to have the flavor or form of law. In any event, actual legal precedent does not apply to impeachment cases. And, protections for criminal defendants enshrined in U.S. law are simply not available to any federal officer facing impeachment.
And the reason for the disconnect is obvious. Under Article I, Section, 3, impeachment ends with either (1) “removal from Office,” or (2) “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Criminal convictions generally end with incarcerations. The Founding Fathers found incarceration — a restraint against personal movement and liberty — to be a severe punishment; thus, the Constitution makes it more difficult for the government to convict and incarcerate criminal defendants than it does to remove presidents from office.
“Astounding thing [about] this is that it comes from Repub JUDICIARY Comm – a group that supposedly knows law,” University of Missouri Law Professor Frank Bowman noted via Twitter. “As any lawyer knows, except in criminal cases, refusal to testify does allow fact-finder to draw adverse inferences. Impeachment is not criminal. Hire some lawyers, guys.”
Commercial litigator Akiva Cohen had similar thoughts.
“LOLOL,” he tweeted, then explained:
This is flop sweat in letter form. “There is no such thing as a negative inference” – wrong. This is an impeachment trial. The Senators get to vote on whatever basis they believe is right. If there’s 1 Senator who thinks “Trump refusing to testify” supports the claims then guess what – there *is* an adverse inference. What there isn’t is any 5th Amendment right against self-incrimination (in the sense that in a criminal trial, invoking the 5th can’t be held against you).
Trump’s attorney, David Schoen, responded by calling Democrats’ letter a “stunt.”
“We are in receipt of your latest public relations stunt,” the former president’s attorney wrote in a brief reply to Raskin. “As you certainly know, there is no such thing as a negative inference in this unconstitutional proceeding.”
Law&Crime repeatedly reached out to Schoen, but no response was forthcoming at the time of publication.
In any event, it seems Trump won’t be testifying, and it’s unclear if House impeachment managers will go the subpoena route.
[image via Drew Angerer/Getty Images]
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