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?
February 4, 2021
President Donald J. Trump
c/o Bruce L. Castor Jr. and David Schoen
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….