WASHINGTON – House impeachment executives surprised Donald J. Trump on Thursday to testify next week in his Senate trial and made a long-term oath attempt to question the former president about his conduct on the day of the Capitol Insurrection. It was quickly rejected by his lawyers.
In a letter to Mr Trump, Representative Jamie Raskin, the House’s chief prosecutor, said that the former president’s response earlier this week to the House’s indictment of instigating a riot on Jan. 6 contested vital facts about his actions and asked for further explanations.
“Two days ago you filed a response denying many of the factual allegations set out in the impeachment proceedings,” wrote Raskin, Democrat of Maryland. “You have therefore tried to question critical facts despite the clear and overwhelming evidence of your constitutional offense.”
He suggested interviewing Mr. Trump “at a mutually convenient time and location” between Monday and Thursday. The trial is scheduled to begin on Tuesday.
But Mr. Trump’s attorneys Bruce L. Castor Jr. and David Schoen wasted little time turning down the invitation. They said that Mr. Trump did not want any part of a proceeding they insisted on to be “unconstitutional” because he was no longer in office and called Mr. Raskin’s request a “PR 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 individual,” they wrote in a letter to Mr. Raskin.
Mr Schoen and another aide to Mr Trump, Jason Miller, later made it clear that the former president did not want to volunteer before or after the trial began. Instead, his defense team intends to argue that the case should be dismissed immediately on constitutional grounds and that Mr. Trump is not guilty of bipartisan “incitement to rebellion” in which the House claims he provoked a mob with unfounded electoral fraud claims to attack the Capitol to prevent Congress from formalizing its loss.
The decision, if correct, should be helpful for both sides. With Senate Republicans lining up for the second time in just over a year to acquit Mr. Trump, the testimony of a notoriously apolitical former president who continues to falsely insist he won the election could jeopardize his defense.
Democrats may have benefited from Mr Trump’s testimony, but his silence also allows the property managers to tell the senators in court that they have at least given Mr Trump an opportunity to speak. Perhaps more importantly, despite protests from the defense, they were quick to claim that his rejection created a “negative conclusion to his guilt,” which meant that they would use his silence as further evidence of the veracity of their claims.
“Despite the rhetoric of his attorneys, any officer accused of instigating armed violence against the United States government should welcome the opportunity to testify openly and honestly – that is, if the officer has had a defense,” Raskin said in one Declaration on Thursday evening. “We will prove in court that President Trump’s behavior was unjustifiable.”
Mr. Raskin could still try to summon a testimony from Mr. Trump during the trial. However, doing so would require the support of the Senate majority and could lead to a chaotic legal battle over executive privilege claims that could take weeks or more to resolve, which could confuse President Biden and the Democrats’ agendas. Members of both parties, who were already pressing for a speedy trial, signaled skepticism on Thursday about calling Mr Trump.
“I think it’s a terrible idea,” said Senator Chris Coons, Democrat of Delaware and one of Mr. Biden’s closest allies, for Mr. Trump to take the stand. When asked to clarify his reasoning, he replied, “Have you met President Trump?”
“I don’t think that’s in anyone’s interest,” said South Carolina Senator Lindsey Graham, one of the president’s allies. “It’s just a nightmare for the country to do this.”
Managers said their invitation to testify from Mr Trump was primarily due to his attorneys’ official response to the impeachment charge filed with the Senate on Tuesday. In it, Mr. Trump’s attorneys flatly denied that he instigated the attack or intended to disrupt the vote count by Congress, although Mr. Trump was clearly focused on using the process to reverse the results. They also denied a speech to a crowd of his supporters shortly before the attack in which Mr. Trump urged the crowd to go to the Capitol and fight “like hell” the election results, suggesting Republican lawmaker and Vice President Mike Pence had done so. The power to change the outcome “had something to do with the action at the Capitol.”
Mr Trump’s team argued that the former president could not be responsible for these statements, or for the lies he spread about election fraud, as they were protected by First Amendment rights as he believed he was the real winner.
In his letter and subsequent statement, Mr. Raskin did not indicate whether he wanted to attempt to summon testimony from Mr. Trump or other witnesses at the beginning of the trial.
The question has proven difficult for the nine property managers. Having acted quickly against Mr Trump just a week after the attack, they failed to conduct a meaningful factual investigation before indicting him and left holes in their evidence. One of the most notable has to do with exactly how Mr. Trump acted when it became clear that the Capitol was attacked on January 6th.
The president sent several tweets sympathizing with the mob and calling for peace during that time, but as the property managers made clear in theirs 80-page test report Filed in the Senate this week, they have little more direct evidence of how Mr Trump reacted. Instead, they rely on news reports and Legislative accounts who desperately tried to reach him to send in reinforcements from the National Guard, suggesting that he was “excited” about the invasion.
Statements from Mr Trump or other White House or military officials could clarify this. In this case, a better understanding would almost certainly add weeks or more to the process. Republicans are averse to prolonged airing of Mr. Trump’s conduct, but for Democrats the cost would be high for their ambitions to pass coronavirus laws and install the rest of Mr. Biden’s cabinet – with very little chance of passing the verdict of Mr. Trump will ultimately change the process.
New York Democrat Senator Chuck Schumer and majority leader who is likely to have the decision paused, has indicated that without witnesses it would be pleasant to move on.
“We will move forward with a fair and fast process,” he said on Thursday. “The property managers will present their case. The former president’s attorney will build a defense, and the senators will have to look deep into their conscience to determine if Donald Trump is guilty, and if so, ever qualify again for an office of honor, confidence, or gain among United States to enjoy. “
The calculation for Mr. Trump’s legal team is much simpler. In addition to alienating Republican senators who are unwilling to condemn a former president who remains so popular in their party, Mr Trump could be putting himself at legal risk if he testifies. He has a penchant for discovering untruths, and it is a federal crime to do so in front of Congress.
Mr Schön accused the House and Senate Democrats of conducting an unfair trial. He said they didn’t even share basic rules about how long the defense should present their case.
“I do not think anyone who is charged would appear to the trial that we believe to be unconstitutional,” said Mr Schön in a text message.
He and Mr. Castor also rejected Mr. Raskin’s argument that Mr. Trump’s failure to testify would substantiate their argument that he was guilty.
“As I am sure you know,” they wrote, “there is no negative conclusion in this unconstitutional trial.”
But managers also seemed to be at least partially addressing Mr Trump’s impulse to defend himself, betting that he might defy his lawyers’ guidance not to speak. Throughout Mr Trump’s presidency – first during the Russia Inquiry and then in his first impeachment investigation – he was eager to tell his side of the story, convinced that he was his own best spokesman.
During the investigation by Special Adviser Robert S. Mueller III, Mr. Trump insisted to his legal team that he sit and answer prosecutors’ questions. That request irritated his attorneys, who believed that Mr Trump would almost certainly be making a false statement and having greater legal ramifications. A member of his legal team announced the problem.
Ultimately, Mr Mueller refused to request a subpoena for Mr Trump’s testimony and accepted written replies from him that later led the Special Adviser to question whether Mr Trump had been truthful.
Hailey Fox Contribution to reporting.