Lead House impeachment manager Rep. Jamie Raskin(D-MD) sent a letter to former President Donald Trump yesterday requesting that he testify under oath prior to or during the Senate’s upcoming trial. The letter reads:
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.
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.
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.
Very truly yours,
Lead Impeachment Manager
The letter implies that since Trump is no longer in office, he should be available to testify on his own behalf. Raskin’s letter then asserts that a failure to testify will support “a strong adverse inference regarding your actions (and inaction) on January 6, 2021.” Raskin further requests that Trump testify between Monday, Feb. 8, and Thursday, Feb. 11, with the trial set to begin on Tuesday, Feb. 9.
Based on the unprecedented circumstances involving this Senate trial, including the impeachment of a now private citizen, it is unclear whether Trump is compelled to testify and be cross-examined, or whether he is protected under the Fifth Amendment of the United States Constitution, that protects citizens from having to testify in their own defense. The constitutionality of the entire trial is in question, most notably the appointment of Democratic Vermont Sen. Patrick Leahey to preside over the trial.
According to an article by NPR, “So, Democrats are stuck now with an impeachment trial that likely will not succeed,” adding, “some Senate Democrats are exploring alternative ways to keep Trump permanently from holding office.” It is interesting to note that Jamie Raskin himself objected to Florida’s electoral votes being awarded to Trump during the Joint Session of Congress on January 6th, 2017, which ultimately declared Donald Trump the 45th President of the United States.
The trial gives the impression of a partisan, politically-motivated exercise in futility. Democrats should not fear Trump holding office in the future based on the large margin by which he lost the 2020 Presidential Election. Their pursuit of a lifetime ban from holding political office is certainly raising a few eyebrows.
President Trump’s council promptly replied to Raskin’s letter, calling it a “public relations stunt” and pointing out that “there is no such thing as a negative inference.” Trump’s attorneys also point out that the trial is unconstitutional and amounts to Democrats playing games with our Constitution.
Dear Congressman Raskin:
We are in receipt of your latest public relations stunt. As you certainly know, there is no such thing as a negative inference in this unconstitutional proceeding.
Your letter only confirms what is known to everyone: you cannot prove your allegations against the 45th President of the United States, who is now a private citizen.
The use of our Constitution to bring a purported impeachment proceeding is much too serious to try to play these games.
Bruce L. Castor, Jr.
David L. Schoen
Attorneys to the 45th President
Donald J. Trump