WASHINGTON – House impeachment administrators issued a surprise request on Thursday for Donald J. Trump to testify at his Senate trial next week, making a remote attempt to question the sworn ex-president about his conduct on the day of the riot on the Capitol. He was quickly rejected by his lawyers.
In a letter to Mr. Trump, Congressman Jamie Raskin, the House’s chief impeachment prosecutor, said the former president’s response this week to the House’s accusation that he incited an uprising on January 6 challenged crucial facts about his actions and demanded further explanations.
“Two days ago, you filed an answer in which you denied many factual claims made in the impeachment article,” wrote Raskin, a Democrat from Maryland. “So you tried to put critical facts in question, despite the clear and overwhelming evidence of your constitutional offense.”
He proposed to interview Mr. Trump “at a mutually convenient time and place” between Monday and Thursday. The trial is scheduled to begin on Tuesday.
But Trump’s lawyers, Bruce L. Castor Jr. and David Schoen, wasted no time in rejecting the invitation. They said that Trump did not want to participate in a process that they insisted was “unconstitutional” because he was no longer in office, and called Raskin’s request “a public relations scam”.
“Your letter only confirms what is known to everyone: you cannot prove your accusations against the 45th President of the United States, who is now a private citizen,” they wrote in a letter to Raskin.
Mr. Schoen and another adviser to Mr. Trump, Jason Miller, later clarified that the former president did not plan to testify voluntarily before or after the trial began. Instead, his defense team intends to argue that the case should be closed immediately for constitutional reasons, and that Mr. Trump is not guilty of the bipartisan charge of “inciting insurrection” in which the House claims he has provoked a crowd with allegations of unfair electoral fraud to attack the Capitol in an attempt to prevent Congress from formalizing its loss.
The decision, if valid, is likely to be useful to both sides. With Senate Republicans already lining up to absolve Trump for the second time in just over a year, the testimony of a notoriously rude former president who continues to falsely insist that he won the election risks jeopardizing his defense.
Democrats may have benefited from Trump’s testimony, but his silence also allows House administrators to tell senators at the trial that they have at least given Trump the opportunity to speak. Perhaps more importantly, they quickly claimed – despite defense protests – that their refusal established “an adverse inference that supported their guilt”, which means that they would cite their silence as further proof that their allegations are true.
“Despite the rhetoric of his lawyers, any officer accused of inciting armed violence against the United States government should be given the chance to testify openly and honestly – that is, if the officer had a defense,” Raskin said in a statement Thursday. – late afternoon. “We will prove at the trial that President Trump’s conduct was indefensible.”
Mr. Raskin can still try to summon Mr. Trump’s testimony during the trial. But doing so would require the support of a majority of the Senate and could spark a confusing legal battle over claims of executive privilege that could take weeks or more to break up, confusing the agenda of President Biden and the Democrats. Members of both parties who are already pushing for a speedy trial signaled skepticism on Thursday when calling Trump.
“I think it’s a terrible idea,” said Senator Chris Coons, a Delaware Democrat and one of Biden’s closest allies, about Trump taking the deposition. Asked to clarify his reasoning, he replied: “Did you meet President Trump?”
“I don’t think that would be in anyone’s interest,” said Senator Lindsey Graham of South Carolina, one of the president’s allies. “It is a nightmare for the country to do that.”
Managers said the invitation to Trump to testify was motivated mainly by his lawyers’ official response to the impeachment charge, presented to the Senate on Tuesday. In it, Trump’s lawyers categorically denied that he incited the attack or intended to stop counting Congressional electoral votes, despite Trump’s clear and stated focus on using the process to override the results. They also denied that a speech to a crowd of his supporters shortly 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, “it had something to do with the action on Capitol Hill.”
Trump’s team argued that the ex-president cannot be blamed for these statements, or for the falsehoods he spread about election fraud, because they were protected by First Amendment rights, as he believes he was the real winner.
In his letter and subsequent statement, Mr. Raskin did not indicate whether he intended to testify to Mr. Trump or any other witness when the trial begins.
The question proved to be difficult for the nine managers of the House. As they acted quickly to accuse Mr. Trump just a week after the attack, they did not make any significant investigation before accusing him, leaving holes in his evidence records. One of the most notable has to do with the accuracy with which Mr. Trump behaved when it became clear that the Capitol was under attack on January 6.
The president sent several tweets sympathizing with the crowd and asking for peace during that time, but as House administrators made clear in his 80-page Senate trial this week, they have little more direct evidence of how Trump responded. Instead, they rely on news and reports from lawmakers who desperately tried to contact him to send reinforcements from the National Guard, suggesting that he was “delighted” with the invasion.
The testimony of Mr. Trump or other White House officials or military personnel can clarify this. But in this case, greater understanding would almost certainly prolong the trial for weeks or more. Republicans are averse to prolonged exposure of Trump’s conduct, but for Democrats, the cost would be high for their ambitions to pass coronavirus relief legislation and install the rest of Biden’s office – with very little chance of changing the verdict. The judgement.
Senator Chuck Schumer, a New York Democrat and majority leader, with whom the decision is likely to fit, indicated that he would feel comfortable going ahead without witnesses.
“We will move forward with a fair and quick trial,” he said on Thursday. “The leaders of the Chamber are going to present their case. The former president’s lawyer will mount a defense, and senators will have to look deeply into their consciences and determine whether Donald Trump is guilty and, if so, will qualify again to enjoy any position of honor, trust or profit under the United States. “
The calculation for Mr. Trump’s legal team is much simpler. In addition to alienating Republican senators reluctant to condemn a former president who remains so popular in his party, Trump can put himself in legal danger if he testifies. He has a tendency to declare falsehoods and it is a federal crime to do so before Congress.
Schoen accused Democrats in the House and Senate of conducting an unfair process. He said they still don’t share ground rules, like how long the defense will have to present their case.
“I don’t think anyone being accused would appear in the process that we firmly believe to be unconstitutional,” said Schoen in a text message.
He and Castor also rejected Raskin’s reasoning that Trump’s failure to testify would reinforce the argument that he is guilty.
“As you certainly know,” they wrote, “there is no negative inference in this unconstitutional process.”
But managers also seemed to appeal, at least in part, to Trump’s self-defense impulse, betting that he could challenge his lawyers’ guidance of not speaking. During Trump’s presidency – first during the investigation in Russia and then in his first impeachment investigation – he was eager to tell his version of the story, convinced that he was his best spokesman.
During the investigation by special attorney Robert S. Mueller III, Mr. Trump insisted with his legal team that he wanted to sit down and answer prosecutors’ questions. That desire unnerved his lawyers, who believed that Trump would almost certainly make some kind of false statement and face greater legal consequences. A member of his legal team withdrew because of the problem.
Ultimately, Mr. Mueller refused to seek a subpoena for Mr. Trump’s testimony and accepted his written responses that later led the special attorney to question whether Mr. Trump had been genuine.
Hailey Fuchs contributed reports.