As we explained in several previous articles, and former President Trump’s attorneys argued
in their trial memorandum, impeaching a former President is an unconstitutional bill of attainder, and the proceedings should be dismissed out of hand.
But that is not the only outrage against the Constitution in which Democrats have engaged in the persecution of Mr. Trump.
Democrats also claim that the First Amendment does not apply to impeachment. That outrageous claim led former President Trump’s legal counsel to argue:
The Constitution must, at a minimum, serve as a limitation on the ability of Congress to impeach for “high crimes and misdemeanors.” As noted by a Constitutional scholar a few years ago, if that were not the case, there would be a host of internal contradictions within the Constitution that could not have been intended by the Framers:
Additional negative restrictions would also extend from the panoply of protections in the Bill of Rights. For example, an officer could not be removed from office for refusing to self-incriminate (Fifth Amendment) or seeking the assistance of counsel in a criminal prosecution (Sixth Amendment). Whatever “high crimes and Misdemeanors” means, it cannot include conduct that is itself protected by the Constitution; such would be an internal contradiction. Or, to frame it in modern doctrine, it would amount to an unconstitutional condition: punishing a person for exercising a right protected by the Constitution.
However, that is exactly what Democrat impeachment managers are arguing.
Lead Impeachment Manager Jamie Raskin issued the following statement in response to President Donald Trump's refusal to testify under oath, either before or during the Senate impeachment trial:
"Today, we offered President Trump the opportunity to testify about the events of January 6 and he refused to do so. 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. We will prove at trial that President Trump’s conduct was indefensible. His immediate refusal to testify speaks volumes and plainly establishes an adverse inference supporting his guilt."
Got that: The former President’s “refusal to testify speaks volumes and plainly establishes an adverse inference supporting his guilt."
Or put more plainly, Mr. Trump’s choice to invoke his Fifth Amendment right to remain silent is evidence he committed an impeachable offence.
Democrat Rep. Raskin is a former constitutional law professor, so he must be familiar with Supreme Court jurisprudence on this issue and he must know that his position is the exact opposite of what the Supreme Court has held over the course of almost 150 years.
[For an excellent examination of the issue of “no adverse influence” we recommend this article by Sharon R. Gromer, Fifth Amendment--The Right to a no Adverse Inference Jury Instruction, 72 J. Crim. L. & Criminology 1307 (1981)]
As Ms. Gromer explained in the article cited above, The Supreme Court's reasoning in the Carter case can be summarized as follows:
(1) there is a strong possibility that a jury will notice a defendant's failure to testify, and will draw an inference of guilt from his silence;
(2) this inference from silence to guilt imposes a penalty on a defendant for exercising his fifth amendment right;
(3) Griffin held that such penalties violate the fifth amendment;
(4) an instruction will lessen the possibility that jurors will give evidentiary weight to a defendant's silence; therefore,
(5) the fifth amendment guarantees the right to a jury instruction, at least when a criminal defendant requests it.
For an example of a jury instruction on a defendant’s refusal to testify we turn to California’s model jury instruction on the issue:
A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way. [Emphasis by CHQ.]
As the prosecutor in a burglary case, such as the Carter case cited above, Mr. Raskin’s claim to a jury that former President Trump’s “refusal to testify speaks volumes and plainly establishes an adverse inference supporting his guilt,” would be grounds for an immediate mistrial, and possibly sanctions against him. However, in the persecution of Mr. Trump anything goes, and in a process completely untethered to the Constitution Raskin can argue the exact opposite of the constitutional standard and get away with it, so long as it advances the case against Donald Trump.
Call the toll-free Capitol Switchboard (1-866-220-0044), tell Senators you oppose the unconstitutional and unjustified impeachment of former President Donald Trump. Tell them Rep. Raskin’s argument that former President Trump’s “refusal to testify speaks volumes and plainly establishes an adverse inference supporting his guilt,” is the exact opposite of the constitutional standard.
incitement of insurrection
ex post facto laws
bills of attainder
Right to Remain Silent