Here's another reason the impeachment trial is unconstitutional

After American Thinker queued up my "Impeachment Trial Preview" for publication on its busy pages, even more novel questions tumbled out, if one can believe it, about the second impeachment trial of former president Donald John Trump.   

C-SPAN is expecting the trial to start on 1:00 P.M. EST on Feb. 9, 2021.  People can watch live or whenever is convenient "on demand" on C-SPAN's special web page.

Impeachment managers sent from the U.S. House of Representatives to the U.S. Senate have threatened to, and really already did, violate the Fifth Amendment to the U.S. Constitution. 

They are asserting violations of the Constitution by Trump while themselves violating it. 

On Feb. 2, 2021, new attorneys representing Trump filed an "Answer" to the articles of impeachment, but not (yet) an actual trial brief.  Trump's attorneys and others challenge the trial as unconstitutional because Trump has left office.  

Yet on Feb. 4, 2021, the impeachment managers asked Trump to testify in the upcoming trial

In other words, if Trump took the bait, he would be legitimizing an unconstitutional proceeding.  Democrats believe their own propaganda about him.  They thought Trump could not resist out of ego.  By showing up to testify, Trump could destroy his legal objection to the unconstitutional trial, as Jason Miller suggested.

Trump's "Answer" denied the factual allegations.  This is overwhelmingly typical, requiring the prosecutors to prove their case.  Yet House "prosecutors" want to force Trump to prove his innocence.  Democrats are accustomed to just asserting things.  Trump's lawyers quickly rejected the invitation. 

The letter from the impeachment managers' leader, Jamie Raskin (D-Md.), threatened 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.

Although reported only indirectly on Fox News, Raskin apparently said Trump's refusal shows his guilt after being rebuffed.

However, the Fifth Amendment to the U.S. Constitution prohibits anyone from being "compelled in any criminal case to be a witness against himself."  The U.S. Supreme Court has repeatedly made clear that it is a violation of the Fifth Amendment for a trial court to draw an adverse inference from a defendant's decision not to testify.  See Carter, Estelle v. Smith, 451 U.S. 454 (1981); Mitchell v. United States, 526 U.S. 314 (1999); Carter v. Kentucky, 450 U.S. 288 (1981), at least at the guilt phase.

But this is impeachment.  Yet the courts routinely treat some proceedings as "quasi-criminal."  Democrats are threatening criminal prosecution.  This is a problem because the jury pool in Washington, D.C. voted 95% for Biden.  (Conservatives without regard to race need to move into D.C.  Only about 341,000 D.C. residents voted in 2020.) 

Moreover, the U.S. Supreme Court holds that the threat of drawing an adverse inference from a defendant not testifying would cripple Fifth Amendment rights.  Therefore, an inference would harm constitutional rights.

Also, it is the Senate that decides what rules will apply and what factual assertions to believe.  Raskin as prosecutor has no right to decide what inferences the Senate will make.  Yet he clearly assumes that power.

Famous law professor Jonathan Turley, a Democrat before his party swerved sharply to the left, condemned this bullying:

The Supreme Court has been adamant that the type of inference sought by Raskin is abhorrent and abusive in courts of law. In Griffin v. California, 380 U.S. 609 (1964), the Court reviewed a California rule of evidence which permitted adverse comment on a defendant's failure to testify.


The statement conflicts with one of the most precious and revered principles in American law that a refusal to testify should not be used against an accused party.

Professor Turley also reads into this exchange that the impeachment managers are not prepared to prove their case, having rushed the impeachment through without witnesses. 

Meanwhile, watch for this also: clearly the main reason Democrats want to proceed with impeachment is to make sure they don't have to face a rematch with Trump in 2024.  Democrats are likely to argue that they can disqualify Trump from holding future office without a two-thirds vote.  Many have already said they can disqualify Trump on a simple majority vote even if they fail to get two thirds of the votes for removal.

The Constitution says: 

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States[.]

But it also says:

And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Therefore, "judgment," meaning "convicted," requires a two-thirds vote of the U.S. Senate.  Disqualification arises only from a judgment, which requires a two-thirds vote.

There are enough novel issues at stake to fascinate us for weeks, but the trial is likely to be short.

Jonathon Moseley is an attorney in Virginia.

Photo illustration by Monica Showalter with use of image by Tom Childers, via Flickr // CC BY-SA 2.0, and public domain source.

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