Last Updated on February 8, 2021
Impeachment Managers sent from the U.S. House of Representatives to the U.S. Senate have threatened to, and really already did, violate the Fifth Amendment to the U.S. Constitution. They are asserting violations of the Constitution by President Donald Trump while themselves violating it.
On February 2, 2021, new attorneys representing President Trump filed an “Answer” to the Articles of Impeachment, but not (yet) an actual trial brief. Trump’s attorneys and others challenge the trial as unconstitutional because President Trump left office. Yet, on February 4, 2021, the Impeachment Managers asked the former President to testify in the upcoming trial.
In other words, if President Trump took the bait, he would be legitimizing an unconstitutional proceeding. Democrats believe their own propaganda about him. By showing up to testify, President Trump could destroy his legal objection to the unconstitutional trial, as Jason Miller suggested.
President Trump’s “Answer” denied the factual allegations. This is overwhelmingly typical, requiring the prosecutors to prove their case. Yet House “prosecutors” want to force President Trump to prove his innocence. Democrats are accustomed to just asserting things.
The former President’s lawyers quickly rejected the invitation, calling it a “public relations stunt.”
However, the letter from the Impeachment Managers’ leader Jamie Raskin (D-Md) threatened President Trump, “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.”
Although reported only indirectly on Fox News, Raskin apparently said that Trump’s refusal shows his guilt after being rebuffed.
However, the Fifth Amendment to the U.S. Constitution prohibits anyone from being “compelled in any criminal case to be a witness against himself.” The U.S. Supreme Court has repeatedly made clear that it is a violation of the Fifth Amendment for a trial court to draw an adverse inference from a defendant’s decision not to testify. See, Carter, Estelle v. Smith, 451 U. S. 454 (1981), Mitchell v. United States, 526 U. S. 314 (1999); Carter v. Kentucky, 450 U. S. 288 (1981), at least at the guilt phase.
But this is impeachment. Yet the courts routinely treat some proceedings as “quasi-criminal.” Democrats are threatening criminal prosecution. This is a problem because the jury pool in Washington, D.C. voted 95% for Biden.
Moreover, the U.S. Supreme Court holds that the threat of drawing an adverse inference from a defendant not testifying would cripple Fifth Amendment rights. Therefore, an inference would harm constitutional rights.
Also, it is the Senate which decides what rules will apply and what factual assertions to believe. Raskin as prosecutor has no right to decide what inferences the Senate will make. Yet he clearly assumes that power.
Famous Law Professor Jonathan Turley, a Democrat before his Party swerved sharply to the Left, condemned this bullying:
“The Supreme Court has been adamant that the type of inference sought by Raskin is abhorrent and abusive in courts of law. In Griffin v. California, 380 U.S. 609 (1964), the Court reviewed a California rule of evidence which permitted adverse comment on a defendant’s failure to testify.”
“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.”
Professor Turley also reads into this exchange that the Impeachment Managers are not prepared to prove their case, having rushed the impeachment through without witnesses.
Meanwhile, watch for this also: Clearly the main reason Democrats want to proceed with impeachment is to make sure they don’t have to face a rematch with President Trump in 2024. Democrats are likely to argue that they can disqualify Trump from holding future office without a two-thirds vote. Many have already said that they can disqualify Trump on a simple majority vote even if they fail to get two-thirds votes for removal.
The Constitution says:
“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States:”
But also says:
“And no Person shall be convicted without the Concurrence of two thirds of the Members present.”
Therefore, “Judgment,” meaning “convicted,” requires a two-thirds vote of the U.S. Senate. Disqualification arises only from a judgment, which requires a two-thirds vote.
There are enough novel issues at stake to fascinate us for weeks but the trial is likely to be short.