Presidents have not testified in impeachment proceedings in the past. One reason for this is that so far only seated presidents have been charged and the presidents have opposed the prospect of being examined by the legislature as head of the executive branch. Furthermore, it was likely viewed as unworthy and frankly too risky. Indeed, most defense lawyers routinely discourage clients from giving evidence in actual criminal cases because the risks outweigh the benefits. Eventually, Trump argues that this trial is unconstitutional and therefore would deviate even less from tradition and appear as a witness.
Despite the historic precedent for non-testifying presidents, Raskin made an extraordinary and terrifying statement on behalf of the House of Representatives. In a letter to Trump, he wrote: “If you decline this invitation, we reserve all rights, including the right to determine in court that your refusal to testify leads to a strong negative conclusion regarding your actions (and inaction) on January 6th based. 2021. ”
Raskin justified his position by saying that Trump “denied many factual allegations that are set out in the impeachment article”. Hence, he insisted that Trump testify, or his silence is evidence of guilt. According to this theory, any response other than admitting the allegations would trigger that response and allow the House to use the defendant’s silence as an inference to guilt.
The statement contradicts one of the most valuable and revered principles of American law that a refusal to testify should not be used against an accused party.
The statement also highlighted the fact that nothing was done by the House to provide testimony of those that could shed light on Trump’s intent. After the House went through a “quick impeachment” trial, it took weeks without calling any of the dozen or so witnesses who could testify about Trump’s testimony and behavior in the White House. Many of these witnesses have already given public interviews.
Of course, the relative passivity of the house simply shows a lack of effort to actually win this case. Raskin’s statement is far more disturbing. The fifth amendment embodies this touchstone of American law by stating that “[n]o person. . . will be forced to testify against himself in any criminal case. “It was a rejection of the kind of abuse associated with the infamous Star Chamber in Britain. As the Supreme Court stated in 1964, it is the embodiment of “many of our core values and noblest aspirations.” Murphy v Waterfront Commission, 378, US 52, 55 (1964).
Central to this right is the additional protection that a defendant’s silence cannot be used against him in the manner suggested by Raskin. There was a time when members of Congress not only respected this rule but struggled to tighten it. For example, Congress passed a law in 1878 that dealt with testimonial rights, but specifically stated that failure of a defendant to obtain testimony “should not create a presumption against him.”
The Supreme Court has insisted that the type of inference that Raskin is seeking in court is horrific and abusive. In Griffin v. California, 380 US 609 (1964), the court reviewed a California rule of evidence that allowed for a negative opinion on a defendant’s failure to testify. The California rule sounded conspicuously Raskin’s position, requiring that “a defendant’s failure to testify or deny evidence or facts in the case against him may be commented on by the court and attorney and examined by the court or the jury. “The court rejected such reprimands or the trust of prosecutors as unconstitutional.
Later in Carter v Kentucky, the Supreme Court ruled that “the privilege of keeping silent has a very different meaning. ..from the ‘mere etiquette of the processes and … the formalities and details of the procedure.’ “It is about the most basic principles of justice in our legal system.
In the past, when such concerns were raised, Members and experts have resorted to the impeachment theory, where anything goes. Such principles are dismissed as relevant in purely “political” impeachment proceedings. I have long rejected this view. This is not a political exercise. It is a constitutional exercise. These senators do not act as politicians, but rather as constitutional actors in accordance with the standards and procedures established for impeachment. It would mock the process if members like Raskin, when claiming to uphold constitutional values, destroy the foundations of constitutional rights.
Yet Harvard professor Laurence Tribe (who routinely favored any interpretation Trump disapproves) declared Raskin correct and promised to use a decision not to testify as evidence of guilt: “If Mr. Trump denies the option of his name through.” It will be up to him to show up and explain under the oath why his behavior on January 6th did not blame him for the deadly uprising that day. He can’t have it both ways. “No, it’s up to us. The house cannot declare it both ways that it is upholding constitutional values while it is eviscerating them.
It is true that this is not a criminal case. It is a constitutional process. As such, the Senate should try a defendant according to our highest traditions and values. This includes respecting the right to remain silent and not “inferring” that Trump (like previous presidents) will not attend the negotiation or testify.