Trump refuses surprise call to testify in his impeachment trial

The House impeachment managers issued a surprise request Thursday for Donald Trump to testify in his Senate trial next week, making a long-shot attempt to question the former president under oath about his conduct on the day of the Capitol riot, but it was quickly rejected by his lawyers.

In a letter to Trump, Rep. Jamie Raskin, the lead House impeachment prosecutor, said the former president’s response this week to the House’s charge that he incited an insurrection Jan. 6 had disputed crucial facts about his actions and demanded further explanation.

“Two days ago, you filed an answer in which you denied many factual allegations set forth in the article of impeachment,” wrote Raskin, D-Md. “You have thus attempted to put critical facts at issue notwithstanding the clear and overwhelming evidence of your constitutional offense.”

He proposed interviewing Trump “at a mutually convenient time and place” between Monday and Thursday. The trial is set to begin Tuesday.

But Trump’s lawyers, Bruce Castor Jr. and David Schoen, wasted little time in swatting away the invitation. They said that Trump wanted no part of a proceeding they insisted was “unconstitutional” because he is no longer in office and called Raskin’s request a “public relations stunt.”

“Your letter only confirms what is known to everyone: You cannot prove your allegations against the 45th president of the United States, who is now a private citizen,” they wrote in a letter to Raskin.

Schoen and another adviser to Trump, Jason Miller, later clarified that the former president did not plan to testify voluntarily before or after the trial begins. Instead, his defence team intends to argue that the case should be dismissed outright on constitutional grounds and that Trump is not guilty of the bipartisan “incitement of insurrection” charge in which the House asserts he provoked a mob with baseless voter fraud claims to attack the Capitol in a bid to stop Congress from formalising his loss.

The decision, if it holds, is likely to be helpful for both sides. With Senate Republicans already lining up to acquit Trump for the second time in just over a year, testimony from a famously impolitic former president who continues to insist falsely that he won the election risks jeopardising his defence.

Democrats might have benefited from Trump’s testimony, but his silence also allows the House managers to tell senators sitting in judgment that they at least gave Trump an opportunity to have his say. Perhaps more important, they quickly claimed — despite the defence’s protests — that his refusal established an “adverse inference supporting his guilt,” meaning that they would cite his silence as further proof that their allegations are true.

“Despite his lawyers’ rhetoric, any official accused of inciting armed violence against the government of the United States should welcome the chance to testify openly and honestly — that is, if the official had a defense,” Raskin said in a statement Thursday evening. “We will prove at trial that President Trump’s conduct was indefensible.”

Raskin could still try to subpoena testimony from Trump during the trial. But doing so would require support from a majority of the Senate and could prompt a messy legal battle over claims of executive privilege that could take weeks or longer to unwind, snarling the agenda of President Joe Biden and Democrats. Members of both parties already pressing for a speedy trial signalled scepticism Thursday to calling Trump.

“I think it’s a terrible idea,” Sen. Chris Coons, D-Del., one of Biden’s closest allies, said of Trump taking the witness stand. Asked to clarify his reasoning, he replied, “Have you met President Trump?”

“I don’t think that would be in anybody’s interest,” said Sen. Lindsey Graham, R-S.C., one of the president’s allies. “It’s just a nightmare for the country to do this.”

The managers said their invitation for Trump to testify was prompted primarily by his lawyers’ official response to the impeachment charge, filed with the Senate on Tuesday. In it, Trump’s lawyers flatly denied that he incited the attack or meant to disrupt Congress’ counting of electoral votes, despite Trump’s clear and stated focus on using the process to overturn the results. They also denied that a speech to a throng of his supporters just before the attack in which Trump urged the crowd to go to the Capitol and “fight like hell” against the election results, suggesting that Republican lawmakers and Vice President Mike Pence had the power to change the outcome, “had anything to do with the action at the Capitol.”

Trump’s team argued that the former president could not be culpable for those statements or for the falsehoods he spread about election fraud because they were protected by First Amendment rights, given that he believes that he was the true winner.

The question has proved a difficult one for the nine House managers. Because they moved quickly to impeach Trump only a week after the attack, they did no meaningful fact-finding before charging him, leaving holes in their evidentiary record. One of the most notable has to do with how precisely Trump conducted himself when it became clear the Capitol was under assault Jan. 6.

The president sent several tweets sympathising with the mob and calling for peace during that time, but as the House managers made clear in their 80-page trial brief filed with the Senate this week, they possess little more direct evidence of how Trump responded. Instead they rely on news reports and accounts by lawmakers who desperately tried to reach him to send in National Guard reinforcements, which have suggested that he was “delighted” by the invasion.

Testimony by Trump or other White House or military officials could clarify that. But in this case, a greater understanding would almost certainly prolong the trial by weeks or longer. Republicans are averse to an extended airing of Trump’s conduct, but for Democrats, the cost would be steep to their ambitions to pass coronavirus relief legislation and install the remainder of Biden’s Cabinet — with very little chance of ultimately changing the verdict of the trial.

Sen. Chuck Schumer, D-N.Y., the majority leader, with whom the decision will most likely rest, has indicated he would be comfortable proceeding without witnesses.

“We will move forward with a fair and speedy trial,” he said Thursday. “The House managers will present their case. The former president’s counsel will mount a defense, and senators will have to look deep into their consciences and determine if Donald Trump is guilty, and if so, ever qualified again to enjoy any office of honour, trust or profit under the United States.”

The calculus for Trump’s legal team is far simpler. In addition to alienating Republican senators reluctant to convict a former president who remains so popular in their party, Trump could put himself in legal jeopardy if he testified. He has a penchant for stating falsehoods, and it is a federal felony to do so before Congress.

Schoen accused Democrats in the House and Senate of running an unfair proceeding. He said they had yet to share even basic rules, like how long the defence would have to present its case.

“I don’t think anyone being impeached would show up at the proceedings we firmly believe are unconstitutional,” Schoen said in a text message.

He and Castor also rejected Raskin’s reasoning that Trump’s failure to testify would bolster their argument that he is guilty.

“As you certainly know,” they wrote, “there is no such thing as a negative inference in this unconstitutional proceeding.”

But the managers also appeared to be appealing, at least in part, to Trump’s impulse for self-defence, betting that he might defy his lawyers’ guidance not to speak. Throughout Trump’s presidency — first during the Russia investigation and then in his first impeachment inquiry — he was eager to tell his side of the story, convinced that he was his own best spokesperson.

During the investigation by special counsel Robert Mueller, Trump insisted to his legal team that he wanted to sit and answer prosecutors’ questions. That desire unnerved his lawyers, who believed that Trump would almost certainly make some sort of false statement and face greater legal consequences. One member of his legal team quit over the issue.