House Impeachment Manager Rep. Jamie Raskin (D) made the claim on Saturday that President Trump’s decision not to testify may be cited as ‘evidence of his guilt.’

Despite the historical precedent for presidents not testifying, Raskin made an extraordinary and chilling declaration on behalf of the House of Representatives.  He wrote in a letter to Trump that “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.”

Raskin justified his position by noting that Trump “denied many factual allegations set forth in the article of impeachment.” Thus, he insisted Trump needed to testify or his silence is evidence of guilt. Under this theory, any response other than conceding the allegations would trigger this response and allow the House to use the silence of the accused as an inference of guilt.

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.

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The statement also highlighted the fact that the House has done nothing to lock in the testimony of those who could shed light on Trump’s intent.  After using a “snap impeachment,” the House let weeks pass without any effort to call any of the roughly dozen witnesses who could testify on Trump’s statements and conduct in the White House.

Many of those witnesses have already given public interviews.

The relative passivity of the House simply shows a lack of effort to actually win this case.

The Raskin statement is far more disturbing.

The Fifth Amendment embodies this touchstone of American law in declaring that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.”  It was a rejection of the type of abuses associated with the infamous Star Chamber in Great Britain. As the Supreme Court declared in 1964, it is the embodiment of “many of our fundamental values and most noble aspirations.”  Murphy v. Waterfront Commission, 378 U.S. 52, 55 (1964).

It is true that this is not a criminal trial. It is a constitutional trial. As such, the Senate should try an accused according to our highest traditions and values.

That includes respecting the right to remain silent and not to have “inferences” drawn from the fact that (like prior presidents) Trump will not be present at the trial or give testimony.

The House is arguing against one of the very touchstones of our constitutional system and legal experts are silent.

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