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A different 'court': Trump's silence at his Senate impeachment trial can be used against him

Legal analysis: Rep. Jamie Raskin has warned the former president about his refusal to testify.
Image: President Donald Trump waves as he walks to Marine One on the South Lawn of the White House before boarding Marine One.
President Donald Trump waves as he walks to Marine One on the South Lawn of the White House.Drew Angerer / Getty Images file

Can the managers of former President Donald Trump's impeachment trial force him to appear and testify?

Last week, House impeachment managers requested that he give testimony either before or during the trial, which begins Wednesday. But Trump senior adviser Jason Miller said the former president will not testify at what he considers to be an "unconstitutional proceeding."

Both houses of Congress have constitutional power to issue subpoenas and compel testimony to pursue a valid legislative purpose. The impeachment function is committed solely to Congress, so subpoenaing witnesses for a trial in the Senate is likely a "valid legislative purpose."

Once a house of Congress issues a subpoena, it still has to find the means to enforce it against a private party like Trump, through its contempt powers or by a civil action. Because this is easier said than done, often a congressional subpoena results in a negotiation with the witness for the testimony or documents.

In this case, the House has not subpoenaed Trump. Rather, it asked him to voluntarily appear. Trump has not invoked his Fifth Amendment privilege against self-incrimination because no one has "compelled" him to testify. If lawmakers want a battle, they can try to subpoena him. In that case, Trump would have to consider whether he wants to "take the Fifth."

The privilege against self-incrimination is not limited to compelling testimony in criminal cases. It can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. Witnesses have invoked the privilege when subpoenaed to appear before Congress. Gangster Joe Gallo did it. So did baseball's Mark McGwire.

But Rep. Jamie Raskin of Maryland, the lead manager, also issued this warning to Trump: "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."

That's different from how criminal courts work. In judicial branch courts, no "penalty" may ever be imposed on someone who exercises his core Fifth Amendment right not to be a "witness" against himself in a "criminal case." A judge or a prosecutor’s mere comment on a criminal defendant's failure to testify violates the self–incrimination clause of the Fifth Amendment.

But that same prohibition of adverse inferences from trial silence in criminal court does not apply in civil court cases. The Fifth Amendment does not forbid adverse inferences against civil defendants when they refuse to testify in response to evidence offered against them.

The Senate, obviously, is is not criminal court, where a judge would admonish a jury to ignore a defendant's silence and would punish a prosecutor who commented on it.

In an impeachment trial, the presiding officer is not duty-bound to punish a House manager for commenting on the defendant's silence. Nor will the presiding officer instruct the equivalent of the "jury" — the senators — whether they can consider a defendant's refusal to testify. That's because an impeachment trial is ultimately nothing like a judicial trial.

A judicial branch jury is selected for its neutrality. Senators, on the other hand, were elected to their positions specifically for their biases. They will give a former president's silence whatever weight they see fit, influenced by the same partiality that got them elected to the Senate in the first place.