Raskin: Trump’s Decision Not To Testify May Be Cited As Evidence Of His Guilt
by Jonathan Turley, Ron Paul Institute:
Over the last four years, we have seen an alarming trend of law professors and legal experts discarding constitutional and due process commitments to support theories for the prosecution or impeachment of Donald Trump or his family. Legal experts who long defended criminal defense rights have suddenly become advocates of the most sweeping interpretations of criminal or constitutional provisions while discarding basic due process and fairness concerns. Even theories that have been clearly rejected by the Supreme Court have been claimed to be valid in columns.
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No principle seems inviolate when it stands in the way of a Trump prosecution. Yet, the statement of House manager Rep. Jamie Raskin, D-Md., this week was breathtaking. A former law professor, Raskin declared that the decision of Trump not to testify in the Senate could be cited or used by House managers as an inference of his guilt — a statement that 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. 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.
Despite the historical precedent for presidents not testifying, Raskin made an extraordinary and chilling declaration on behalf of the House of Representatives. 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 January 6, 2021.”
Raskin justified his position by noting that Trump “denied many factual allegations set forth in the article of impeachment.” Thus, he insisted Trump needed to testify or his silence is evidence of guilt. 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. This is the nature of “the cruel trilemma of self-accusation, perjury or contempt.” Murphy v. Waterfront Commission, 378 US 52, 55 (1964)
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 statement also highlighted the fact that the House has done nothing to lock in testimony of those who could shed light on Trump’s intent. After using a “snap impeachment,” the House let weeks pass without any effort to call any of the roughly dozen witnesses who could testify on Trump’s statements and conduct in the White House. Many of those witnesses have already given public interviews.
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