One of the incessant drumbeats of former President Donald Trump’s defense team has been about “due process.” His attorneys keep talking about all the ways in which a rushed House investigation and speedy impeachment trial meant that their client was denied the right to defend himself against the House managers. This claim was invoked several times during their three-plus-hour defense presentation on Friday, which is a strange claim to make in the middle of a literal trial as one’s defense attorneys actually partake in the act of defending him. Apparently, Donald Trump is some kind of ephemeral fog creature, floating in the air above the proceedings, rather than a knowing participant in the impeachment process whose lawyers represent him.
While his attorneys oddly intimated all day that they had never really met with or talked to Donald Trump, had no idea of his actions on the day of Jan. 6, and had no reason to believe the impeachment managers had done anything but spitball, they forgot to note that their client has had every opportunity to exculpate himself. Late Friday, Sen. Bill Cassidy, R-Louisiana, asked both sides about the connection between Trump’s tweet attacking Mike Pence on Jan. 6 and his conversation with Sen. Tommy Tuberville at the time of Pence’s evacuation. In response, Trump’s lawyer Michael Van der Veen snarled, “I dispute the premise of your facts. I dispute the facts that are laid out in that question.” Trump’s lawyer continued by saying again that he had “no idea” what the answer was to Trump’s timeline or subjective knowledge that day, and that “unfortunately, we’re not going to know the answer to the facts in this proceeding because the House did nothing to investigate what went on.”
Impeachment manager Jamie Raskin responded by first noting Van der Veen’s earlier observation that he was having a miserable time at the impeachment trial. “Counsel said before, ‘This has been my worst experience in Washington,’ ” Raskin said. “And for that, I guess we’re sorry, but man, you should have been here on Jan. 6.”
Then he went on to make a serious point:
Counsel for the president keep blaming the House for not having the evidence that’s within the sole possession of their client, who we invited to come and testify last week. We sent a letter on February 4th. I sent it directly to President Trump, inviting him to come and to explain and fill in the gaps of what we know about what happened there. And they sent back a contemptuous response just a few hours later. … But in that letter, I said, you know, if you decline this invitation, we reserve all rights, including the right to establish a trial that your refusal to testify supports a strong adverse inference. What’s that? Well, Justice Scalia was the great champion of that. If you don’t testify in a criminal case, it can’t be used against you, that’s the fifth amendment, but if it’s a civil case and you don’t show up, then according to Justice Scalia and the rest of the Supreme Court, you can interpret every disputed fact against the defendant. That is totally available to us.
So for example, if we say the president was missing in action for several hours and he was derelict in his duty and he deserted his duty as commander-in-chief and we say that as inciter in chief, he didn’t call off the dogs and they say, no, he was really doing whatever he can. If you’re puzzled about that, you can resolve that dispute, factual dispute, against the defendant who refuses to come to a civil proceeding. He will not spend one day in jail if you convict him. This is not a criminal proceeding. This is about preserving the republic, dear Senate. That’s what this is about. Setting standards of conduct for the president of the United States so this never happens to us again. So, rather than yelling at us and screaming about how we didn’t have time to get all of the facts about what your client did, bring your client up here and have him testify under oath about why he was sending out tweets denouncing the vice president of the United States while the vice president was being hunted down by a mob that wanted to hang him and was chanting, in this building, “hang Mike Pence, hang Mike Pence, traitor, traitor, traitor.”
The day has, to be sure, been a slog. But Raskin’s was a pretty bracing reminder that even though his lawyers are behaving as though this is a witch hunt targeting an unknowable and mysterious man-ghost, they have recourse beyond screaming at the house managers. The president could testify and explain what he was doing while a violent mob hunted his vice president. That silence should speak volumes. Raskin reminds us that it does.
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