Constitutional law professor Jonathan Turley argued that the idea that former President Donald Trump not testifying in front of the House can be used against him in his trial “contradicts not just our constitutional principles but centuries of legal writing.”
“Presidents have historically not testified at impeachment trials. One reason is that, until now, only sitting presidents have been impeached and presidents balked at the prospect of being examined as head of the executive branch by the legislative branch,” he wrote for Fox News on Feb. 7.
“Moreover, it was likely viewed as undignified and frankly too risky. Indeed, most defense attorneys routinely discourage their clients from testifying in actual criminal cases because the risks outweigh any benefits. Finally, Trump is arguing that this trial is unconstitutional and thus he would be even less likely to depart from tradition and appear as a witness.”
Last week, House impeachment manager Rep. Jamie Raskin (D-Md.) wrote to Trump and his lawyers that the former president should testify under oath next week during the Senate trial. The Democrat then said that if Trump doesn’t show up to testify, it could be used against him. A similar tactic was used during the former president’s first impeachment trial.
“Despite the historical precedent for presidents not testifying, Raskin made an extraordinary and chilling declaration on behalf of the House of Representatives,” Turley said. “He wrote in a letter to Trump that ‘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 Jan. 6, 2021.'”
All House Democrats and 10 Republicans voted to impeach Trump for allegedly inciting an insurrection over his speech to supporters on Jan. 6 in the midst of the Capitol breach. Trump explicitly said during the rally that demonstrators should peacefully make their voices heard.
According to Turley, Raskin’s statement also implied that “Trump needed to testify or his silence is evidence of guilt” and that “under this theory, any response other than conceding the allegations would trigger this response and allow the House to use the silence of the accused as an inference of guilt.”
Turley wrote, “The statement conflicts with one of the most precious and revered principles in American law that a refusal to testify should not be used against an accused party.”
The scholar, who offered testimony during the first impeachment inquiry in 2019, noted that the Constitution’s Fifth Amendment declares that “no person … shall be compelled in any criminal case to be a witness against himself.”
“It is true that this is not a criminal trial. It is a constitutional trial. As such, the Senate should try an accused according to our highest traditions and values. That includes respecting the right to remain silent and not to have ‘inferences’ drawn from the fact that (like prior presidents) Trump will not be present at the trial or give testimony,” he said.
Raskin’s office didn’t respond to a request for comment by press time.