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. In fact, most defense lawyers routinely discourage clients from giving evidence in actual criminal cases because the risks outweigh the benefits.
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 stating that Trump “denied many allegations of fact presented in the impeachment proceedings.” Hence, he insisted that Trump testified, or his silence is evidence of guilt. According to this theory, any response other than admitting to the allegations would trigger that response and allow the House to use the defendant’s silence as an inference to 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 testimony conflicted with one of the most valuable and revered principles of American law that such a refusal to testify cannot be used against an accused party.
The statement also highlighted the fact that nothing was done by the House to provide testimony from those that could shed light on Trump’s intent. After the House went through a “quick impeachment” trial, it took weeks to pass 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 house’s relative passivity 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 an accused 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 strikingly like Raskin’s position, requiring that “a defendant’s failure to testify or deny evidence or facts in the case against him can be commented on by the court and attorney and examined by the court or the jury. “The court declined such reprimands or the confidence of prosecutors as unconstitutional.
Later in Carter v Kentucky, the Supreme Court ruled that “the privilege of keeping silent has an entirely 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 the purely “political” impeachment process. 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 as constitutional actors in accordance with the standards and procedures established for impeachment. It would mock the process if members like Raskin, when they claim to uphold constitutional values, destroy the foundations of constitutional rights.