Donald Trump has spent a lifetime avoiding accountability for his shady business dealings, financial misdeeds, and abuses of power. But Representative Jamie Raskin is not about to let the defeated former president get away with the high crime of provoking the deadly January 6 attack on the US Capitol.
Raskin, the former constitutional law professor whom House Speaker Nancy Pelosi wisely tapped as the lead manager of Trump’s second impeachment tribunal, raised the stakes Thursday, when he asked Trump to testify before or during the trial that is set to begin next week. And when he pointedly signaled that refusal to testify would likely be used against the defendant.
After the Maryland Democrat and his colleagues outlined the charges against the former president, which were endorsed by a bipartisan majority in the House, Trump’s lawyers delivered a legal brief that denied irrefutable facts about their client’s incitement of insurrection. Raskin did not blink. He dispatched the following letter to the defendant:
Dear President Trump,
As you are aware, the United States House of Representatives has approved an article of impeachment against you for incitement of insurrection. See H. Res. 24. The Senate trial for this article of impeachment will begin on Tuesday, February 9, 2021. See S. Res. 16.
Two days ago, you filed an Answer in which you denied many factual allegations set forth in the article of impeachment. You have thus attempted to put critical facts at issue notwithstanding the clear and overwhelming evidence of your constitutional offense. In light of your disputing these factual allegations, I write to invite you to provide testimony under oath, either before or during the Senate impeachment trial, concerning your conduct on January 6, 2021. We would propose that you provide your testimony (of course including cross-examination) as early as Monday, February 8, 2021, and not later than Thursday, February 11, 2021. We would be pleased to arrange such testimony at a mutually convenient time and place.
Presidents Gerald Ford and Bill Clinton both provided testimony while in office—and the Supreme Court held just last year that you were not immune from legal process while serving as President—so there is no doubt that you can testify in these proceedings. Indeed, whereas a sitting President might raise concerns about distraction from their official duties, that concern is obviously inapplicable here. We therefore anticipate your availability to testify.
If you decline this invitation, we reserve any and all rights, including the right to establish at trial that your refusal to testify supports a strong adverse inference regarding your actions (and inaction) on January 6, 2021.
I would request that you respond to this letter by no later than Friday, February 5, 2021 at 5pm. I look forward to your response and to your testimony.
Very truly yours,
Lead Impeachment Manager
As a constitutional scholar and a savvy legislative strategist, Raskin understands that the impeachment managers cannot let Trump get away with his old tricks. So the lead impeachment manager has flipped the script. Instead of letting the former president game the trial, by making false claims and seeking to impugn the process, Raskin has called Trump’s bluff.
Harvard Law professor Laurence Tribe, who describes Raskin as “the best constitutional lawyer in all of Congress,” recognized the genius in this move immediately. “If Mr. Trump declines the chance to clear his name by showing up and explaining under oath why his conduct on January 6 didn’t make him responsible for the lethal insurrection that day, it’ll be on him,” observed Tribe, shortly after the representative sent his letter. “He can’t have it both ways.”
Trump’s team was just as cognizant of the peril. “The President will not testify in an unconstitutional proceeding,” Trump senior adviser Jason Miller told Fox News. But, as Tribe noted, “This is a transparent copout. Trump could easily testify or agree to a deposition without sacrificing his claim that the Senate has no jurisdiction to try him. His cowardice is obvious.”
Trump’s legal team was scrambling Thursday evening. They called Raskin’s letter a “publicity stunt,” and claimed, “The use of our Constitution to bring a purported impeachment proceeding is much too serious to try to play these games.”
But it was clear that Raskin had outmaneuvered the former president. By requesting that Trump testify under oath, and by signaling that a refusal to testify could be used against him, the representative was seizing control of the narrative. That’s vital in any standoff with Trump, who in the past has used his social media platforms and bully pulpit to run circles around his accusers.
Raskin played his hand brilliantly Thursday. First, the key member of the House Judiciary Committee showcased his confidence in the case the impeachment managers will put against Trump. Second, he made it clear that he and his team are prepared to make this trial a high-stakes clash that will engage every American—and that will put Republican senators on the spot.
Raskin’s understanding of the impeachment process, which he has studied for decades as an academic and as a legislator, is his strength in this regard. He knows that the trial, while it has many of the trappings of a courtroom drama, is, in reality, a political battle.
Impeachment is the tool by which the legislative branch of the federal government checks and balances the executive branch. But the lofty threshold for conviction in an impeachment trial—67 of 100 Senate votes—means that this checking and balancing can occur only when partisans are forced to hold one of their own to account.
Most Senate Republicans have indicated that they are unwilling to make their oath to defend the US Constitution a higher priority than their loyalty to the party’s former president. Last week, 45 of them, including minority leader Mitch McConnell (R-Ky.) voted for a resolution by Kentucky Republican Rand Paul that alleged that the impeachment of a former president was unconstitutional. Paul’s argument was absurd—the Constitution does not, in any sense, bar accountability for ex-presidents. But the vote provided a measure of the Republican resistance to holding Trump to account.
A cautious and predictable approach is unlikely to break loose the 17 Republican votes that are needed to convict Trump in the Senate. The House impeachment managers have to up the ante. Calling on Trump to testify does that. And it is a safe bet that Raskin and his colleagues will continue to push the envelope.
Confidently challenging Trump puts this trial in perspective not just for members of the Senate but for all Americans.
The senators will serve as the jurors but, because this is a political trial, the people can influence the deliberations of those senators. The more clarity that Raskin and his colleagues bring to the process—either by questioning Trump or by pointing out the adverse inferences that extend from a refusal to testify—the better. If Americans are sufficiently appalled by what they see and hear next week, and if they communicate their outrage to reluctant Republican senators, accountability becomes a possibility.
Even for Donald John Trump.