Dems: The Fifth Amendment against self-incrimination doesn't apply to Trump

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If he refuses to testify at his Senate impeachment trial, it will be held against him

The Fifth Amendment protects the accused from having to take the stand under oath and testify against himself. It’s one of the pillars of the American right of due process.

But not for ex-President Donald Trump in his Senate impeachment trial.

Today Lead Impeachment Manager Jamie Raskin (D-Maryland) sent a letter (below) to former President Trump requesting that “he provide testimony under oath, either before or during the Senate impeachment trial, about his conduct on January 6.”

It’s okay to invite him. Everyone in the dock knows that he has a choice whether to testify on his own behalf. The prosecution can force him. And the judge typically instructs the jury that a defendants refuse to testify can’t be used as evidence of his guilt.

Unless you’re Donald Trump. Raskin’s letter ends with this threat:

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.

Hey, Raskin, do you know how to spell railroad? Or Constitution?

His letter:

February 4, 2021

President Donald J. Trump
c/o Bruce L. Castor Jr. and David Schoen

Via E-Mail

Dear President Trump,

As you are aware, the United States House of Representatives has approved an article of impeachment against you for incitement of insurrection. See H. Res. 24. The Senate trial for this article of impeachment will begin on Tuesday, February 9, 2021. See S. Res. 16.

Two days ago, you filed an Answer in which you denied many factual allegations set forth in the article of impeachment. 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. We would propose that you provide your testimony (of course including cross-examination) as early as Monday, February 8, 2021, and not later than Thursday, February 11, 2021. We would be pleased to arrange such testimony at a mutually convenient time and place.

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.

I would request that you respond to this letter by no later than Friday, February 5, 2021 at 5pm. I look forward to your response and to your testimony.

The pertinent part of the Fifth Amendment:

No person shall be…compelled in any criminal case to be a witness against himself….

Comments

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  • Dennis, you didn't read the Fifth Amendment language you quoted. The amendment says that no person may be compelled "in any criminal case" to be a witness against himself. No one has a right to silence in a civil suit. An impeachment trial is not a criminal case. It is a special constitutional proceeding. There are other rights that criminal defendants have that Trump does not have, including the right to be indicted by a grand jury or to be tried by an impartial jury.

    If Trump's specific answers might support a criminal prosecution, he has a right to refuse to answer on Fifth Amendment grounds, but he must object to each question individually. He can't just refuse to testify.

  • Dennis, first of all, an impeachment trial is not a criminal trial. Secondly, Congressman Raskin is a Constitutional scholar and well-versed in the Fifth Amendment. Thirdly, Trump is being invited to testify and not compelled to. Lastly, adverse inference is a legal concept that comes from common law. In this case, a good way to interpret its application is to say that if Trump declines the invitation to testify in his own behalf, it would strongly suggest that he condones the violence on January 6th , or worse, is guilty of inciting it.

  • In reply to Aquinas wired:

    Since this BS has already been acknowledged by constitutional experts (who aren't in the pocket of the commiecrats anyway) to be a fundamentally unconstitutional procedure, Trump has every right to tell them to go pound sand - they have no power to force him to testify - they're claiming he's guilty until HE proves himself innocent in the age old tradition of Lenin/Stalin/Mao kangaroo trial jurisprudence

  • In reply to Archangel999:

    True. The only people you can trust are the ones who agree with you.

  • Without the Chief Justice officiating this is not an impeachment trial.

    "Impeaching" someone after they leave office makes the proceedings farcical. Will this "impeachment" offer us the opportunity to impeach Obama? Or either of the Bushes? Or JFK? What about FDR for his order to imprison US citizens of Japanese descent? Being dead shouldn't matter. After all, Oliver Cromwell was unearthed and tried and his head skewered on a spike. Now that the monarchy of the Deep State has returned, let no corpse be unimpeached.

  • In reply to Richard Davis:

    > Without the Chief Justice officiating this is not an impeachment trial.

    Why would you say that? Trump isn't the President. In impeachment trials of people other than the president, it is the president pro tempore who presides.

    Did you google anything about this to learn about why it is the way it is?

    > he Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

    What about that makes you think Trump has to be in office in order to be tried?

  • In reply to dave77:

    You do realize that impeachment is a political procedure and not a criminal trial? Probably not.

    Your logic is also fractured: Trump is being "impeached" for his actions done while president, so if he is not being impeached for these actions as president then he is a private citizen being put on political trial, as he is not being charged criminally and tried in a court of law.

    So which former president to we try next? I'm voting for FDR; so are the descendants of over 120,000 Japanese-American citizens.

  • In reply to Richard Davis:

    You appear to follow the rule that common sense cannot be applied to human actions.

    You falsely made the statement that this could not be an impeachment without being officiated by the Chief Justice. It seems likely that if anyone here does not understand what this trial is, it is you.

    I know, I know... You're just here to shout things and hope people agree with you. Sorry...

  • I figured that the "it's not a criminal trial" objection would be raised. So, what is it? It is a trial by the senate of a private citizen, clearly a constitutional prohibition. It is a trial by the senate of a president who no longer is a president. Another constitutional problem. But never mind, the partisans are determined to get their pound of flesh and prove how virtuous they are. So, assuming Trump is convicted, what then? Trump will hustle into court as he always does, and the issue will end up before the Supreme Court. Which, I believe, will toss out the conviction. Never mind you've made another constitutional crisis; your ego still will have been served.

  • In reply to Dennis Byrne:

    > I figured that the "it's not a criminal trial" objection would be raised. So, what is it?

    Why do you think that actions taken as President cannot be tried after that Person is no longer President? The implication is that if someone thinks that it will take 6 weeks for articles to be drawn and be passed and then have the trial, etc. That means that a sitting President gets 6 weeks to DO WHATEVER THEY WANT. There is no reasonable reason to think that any of the founders, or anyone since, intended for that to take place.

    This isn't a criminal trial. I think you understand that now. Why is it a constitutional problem for the Senate to hold a trial that the Constitution clearly provides for.

    Regarding the Supreme Court, there are two problems... First, isn't that the way it works? Congress does its thing and then SCOTUS does its thing. Do you have a problem with that for some reason?

    Second, why do you think the Supreme Court would have standing to overthrow a conviction by the Senate? Have they ever even heard a case involving a conviction by the Senate?

    It's becoming obvious when you decide ahead of time that you just don't like something and then you go looking for reasons to justify your opinion.

  • In reply to dave77:

    "It's becoming obvious when you decide ahead of time that you just don't like something and then you go looking for reasons to justify your opinion."

    Sounds like the corrupt commiecrats for the last 4+ years

  • In reply to Archangel999:

    You've made a compelling argument against me. Well done. I'm sure the internet is rapidly creating memes in your honor. You really got me with that one.

  • In reply to Archangel999:

    I forgot my promise not to respond to BillDCat. I will remember to keep it in the future.

  • In reply to Richard Davis:

    Richard, Are you saying Dave77 is BilldeCat? His numerous, longwinded, circuitous logic posts sound like Bill. I suspect that the need for an Administrator to monitor posts was due to Bill and his personal insults to other posters.

  • In reply to Get out of IL now!:

    I'm not sure who 'Bill' is, but I suppose there is no way to convince you of that.

    Richard has remarked to me that he views this board as the equivalent of a place to come and shout at clouds. He got angry at the thought that he could be questioned on his thoughts or even asked to provide a citation for something he states as fact.

    But, I'm the person whose comment history you want to question?

  • In reply to dave77:

    The Constitution's prescription is for the REMOVAL of the officer. The guy has already been removed--by the voters.

  • In reply to Dennis Byrne:

    Removal from office is not the only question. Art. I, Sect. 3, Cl.7 also says impeachment deals with "disqualification to hold and enjoy any office of honor, trust or profit under the United States.” That is why a trial is important even after Trump has left office.

  • "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."

    He should respond - sorry, I'm way too busy planning how I'm going to work to dethrone you sorry pack of corrupt hyenas in 2022 and again in 2024 to waste my time with your unconstitutional kangaroo trial kabuki - but thanks for asking, I suggest go blow yourselves. :-)

  • In reply to Archangel999:

    > I suggest go blow yourselves. :-)

    Remember when the Republican Party was the Party of minds like Bill Buckley? Hell, even George Will?

    Now, well now, it is the party of "go blow yourselves". Very compelling.

  • In reply to dave77:

    When dealing with the years of mindless hatred of a group so terrified that they'll lose the power and money that decades of corruption have won them, there are no logical arguments ala Buckley, they deserve only derision, contempt, and dismissal for their continued unconstitutional actions

  • In reply to Archangel999:

    Convinced me. The more ridiculous you sound, the more likely I am to believe you.

  • Dennis is correct. Donald Trump, like any child pornographer can not be forced to testify against himself. That is the very essence of the 5th Amendment.

    If however, you haven't committed any crimes, there is nothing about which you can testify that would incriminate you.

    Whether it's in writing or not, it is conventional wisdom (or common sense, deductive reasoning, etc) that tells us that the guy taking the 5th is guilty.

    And by "guy" I mean wise guy.

  • In reply to Bob Abrams:

    He cannot be forced to incriminate himself but he can be forced to be a witness. He will then have to invoke his privilege to each question asked. This is how it is different from a criminal case, where the accused cannot even be called as a prosecution witness.

  • Good grief, is Trump not being accused of a crime? Read the article of impeachment (below) that specifically calls his action a crime. Yet he is not being tried in a court of law for a crime. He is being tried by a branch of the legislature that has no power to try crimes under the constitution.

    Your arguments hang by a very thin reed legally. But most disappointing is your justification for requiring an American citizen to testify against himself, whether in a trial or not. Even the cops cannot force a suspect to confess. Miranda, remember?

    Y'all going doing a very dangerous path, a precedent-setting path that, like the Reid's ill-advised nuking of the filibuster on judicial nominees. Thank him for the three conservatives now sitting on the Supreme Court.

    Further, section 3 of the 14th Amendment to the Constitution prohibits any person who has "engaged in insurrection or rebellion against" the United States from "hold[ing] and office ... under the United States.' In his conduct while President of the United States — and in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, provide, protect, and defend the Constitution of the United States and in violation of his constitutional duty to take care that the laws be faithfully executed — Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States, in that:

    " Thus incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session's solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive and seditious acts.

  • In reply to Dennis Byrne:

    The fact that the commission of some crime is an issue in a legal action does not make it a criminal case. If someone embezzles money belonging to you, you may sue them to recover your losses, alleging the theft, this does not make it a criminal case, and the Fifth Amendment does not prevent you from calling the defendant as a witness.

    Similarly, the impeachment language in the Constitution defines the procedure to remove someone from office and disqualify them from holding future office based on “high crimes and misdemeanors.” That does not make it a criminal case.

  • In reply to jnorto:

    I'd love to see how many responses you get that actually address the point you make. I suspect it won't be many/any.

  • As a regular Joe Public guy, not a constitutional scholar as you all act, I see impeachment and conviction a method to remove someone from office. Trump's gone, what's the point? Revenge? He won't run again. But, if he has committed a criminal act, inciting an overthrow of the constitution, by all means should the FBI investigate and the DOJ prosecute. That shows the seriousness of the offense, not the political theater of impeachment of a private citizen. He still won't have to testify, but get him in court and shows us and him what he did.

  • In reply to Get out of IL now!:

    Well said.

  • In reply to Dennis Byrne:

    Why is that well said? What is it about thinking that people with no experience or expertise in a subject are the people we should be listening to when it comes to that subject. People without expertise or experience should be going out of their way to learn about the subject, not brag about how little they know.

    What is this obsession on the Right with trying to ignore the 'elites'? The conceit is that everyone's opinion matters, except for the people who know the most about something. God forbid we pay attention to those people. Let's encourage people to trumpet what makes them feel good, right?

  • In reply to dave77:

    "The conceit is that everyone’s opinion matters, except for the people who know the most about something. God forbid we pay attention to those people."

    Wow, then you should shut up and listen to me because I know the most about something. Very democratic of you.

  • In reply to Dennis Byrne:

    Intentionally misrepresenting what I said? Or just not understanding? Which is it?

    I didn't say people shouldn't have opinions. I said giving credence to the opinion of a non-expert, just because that opinion makes you feel better is a mistake. And, not only is it a mistake, it seems to be an intentional pattern by those on the right.

    Again, what was so 'well said' about that comment? Was it the fact that the person admitted to knowing little about the subject? Was it that they just made some assumptions about what Trump might do (even though Trump has made statements contrary to those assumptions)?

    Here's an idea, show how I'm wrong by telling me what was so 'well said' about it. Don't intentionally misrepresent me. Tell me what makes that point of view so valid.

    Or not. That makes your point of view seem more compelling.

  • In reply to dave77:

    Aside from the legalities involved, it is the ease with which you dismiss the idea that a person shall not be required to testify against himself. An impeachment trial is not a "civil case." Nor a criminal case. In which case you make up the rules as you go along. So, if Trump does appear and he is asked: Did you incite the attack on the Capitol, and he answers "no", do you bring perjury charges against him.

    And there is this from a firm soliciting business, but which likes a pretty good explanation. Do you disagree with what it says?

    "Because the Fifth Amendment applies to protect you from providing evidence that can be used against you in a criminal case, many people are uncertain whether they have a right to remain silent in a civil case. The answer to this question can be complicated.

    "An Irvine civil litigation lawyer can provide you with legal advice on whether you should respond to inquiries as part of a civil lawsuit or whether you can assert the Fifth Amendment right against self-incrimination. Brown & Charbonneau, LLP has extensive experience helping defendants to argue the Constitution gives them a right to remain silent and we will work hard to help you raise this argument and other legal arguments that could help you in civil litigation.

    "Do You Have the Right to Remain Silent in a Civil Case?

    "The Fifth Amendment right not to incriminate yourself is not restricted only to cases where you are under indictment or actively being prosecuted for a crime. In 1976, the U.S. Supreme Court ruled on a case called McCarthy v. Arndstein. Among other holdings, the court ruled: “The constitutional privilege against self-incrimination applies to civil proceedings.” You must assert the right yourself and indicate you refuse to answer on the grounds your reply may incriminate you.

    "This does NOT mean you can refuse to provide answers to questions because they could lead to a jury finding for the opposing party in the civil litigation. What it means is, if your answers to the questions you are being asked could result in you facing criminal prosecution, you do not have to provide the answers. You also do not need to provide answers if the information you would provide could be enough to lead police to evidence that could be used to incriminate you.

    "In 1997, the 11th Circuit court explained in United States v. Gecas that the threat of future prosecution must actually be “reasonable, real, and appreciable” in order for you to be justified in asserting your Fifth Amendment right. You cannot simply claim you think you might some day be prosecuted for your answers in order to avoid providing information you have been asked about when you are involved in civil litigation.

    "Whether or not there is a credible threat your answers could lead to criminal prosecution is going to vary depending upon the specifics of the case and the questions being asked. An experienced Irvine civil litigation lawyer can advise you on whether you may be able to assert your Fifth Amendment rights when you are asked questions in civil litigation you are involved in. Call Brown & Charbonneau, LLP today to schedule a consultation with a lawyer who can help you. 714-505-3000

  • In reply to Dennis Byrne:

    Your whole point seems to be that you cannot take the 5th because it is in your best interest to take the 5th. You can ONLY take the 5th if not doing so could/would lead to criminal prosecution.

    You posted a lot of stuff. It seems like we should both agree on what we think the factual meaning of that 'stuff' is before discussing the implications, no?

    > So, if Trump does appear and he is asked: Did you incite the attack on the Capitol, and he answers "no", do you bring perjury charges against him.

    It's pretty difficult to bring perjury charges against anyone, ever. That's why it so rarely happens. Would "I" bring perjury charges against him? It depends. Has a court already found that he incited the attack? Or, a la Cohen, has he admitted in a credible way that he incited the attack? If so, then yes.

    You know, its against the law to lie to Congress, whether you are under oath or not. I'm not really sure how to answer your question, because I'm not sure what your question really is? Are you just trying to trap me into saying something about some edge case that you will automatically claim applies to every case? What is your question?

    And, I'll add this, because it clarifies why your question is still unclear. Your entire point with this blog article has been about Congress drawing some conclusion based on Trump refusing to testify. But, this particular question is about Trump testifying. Trump could absolutely show up and, if your source is correct, plead the 5th amendment as a response to a particular question. So, which scenario are you upset about? That Trump would refuse to testify? Or that he would testify but use the 5th amendment as a legal shield?

  • In reply to dave77:

    Sounds like you’re advocating a citizenship test for the average voter. Must demonstrate the knowledge of the constitution and its impeachment statutes like you have before expressing an opinion or voting. Do you want to go back to the days when only white male landowners have the requisite knowledge to participate in government?

  • In reply to Get out of IL now!:

    The question is not what voters know. Voters don't try impeachment cases. Senators do.

  • In reply to Get out of IL now!:

    It doesn't sound anything like that. I'm honestly surprised that someone could lack enough basic reading comprehension to somehow think it sounds like I'm advocating that.

    Did you really read what I wrote and think I was advocating that? Really?

  • In reply to Get out of IL now!:

    As I said before, it is not just about removal from office. Conviction can also lead to "disqualification to hold and enjoy any office of honor, trust or profit under the United States.” How do you know Trump won't run again? He has said he will.

  • In reply to Get out of IL now!:

    "While some Republican senators will argue that the trial should not be taking place, historical precedent strongly suggests it is well within the Senate's authority to hold former office holders accountable."

    Newsweek

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