Can Donald Trump be subpoenaed? Lawyers say ex-president won't testify in 'unconstitutional' impeachment trial
Former President Donald Trump's legal team made it amply clear in no uncertain words on Thursday, February 4, that their client will not voluntarily testify under oath at his impeachment trial in the Senate next week after being charged by the House with inciting insurrection at the Capitol on January 6. Although Trump could still be subpoenaed for testimony, the process to do so is not going to be easy.
The stern response from Trump's legal team came after the lead House impeachment manager, Jamie Raskin, wrote a letter to Trump asking him to testify under oath before or during the trial. “You denied many factual allegations set forth in the article of impeachment. You have thus attempted to put critical facts at issue,” Raskin wrote in a letter made public on Thursday, February 4.
He also added that an adverse inference would be made from his refusal 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," Raskin wrote.
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Mere hours after the letter was released, Trump adviser Jason Miller said that the former president “will not testify” in what he described as an “unconstitutional proceeding". Trump’s lawyers dismissed the request as a “public relations stunt”. "We are in receipt of your latest public relations stunt," Trump's attorneys Bruce Castor and David Schoen wrote in a response on Thursday, Xinhua news agency reported.
"As you certainly know, there is no such thing as a negative interference in this unconstitutional proceeding. Your letter only confirms what is known to everyone: you cannot prove your allegations against the 45th President of the United States, who is now a private citizen," they continued.
According to a New York Times report, Schoen later clarified by text message that Trump did not plan to testify voluntarily. "I don't think anyone being impeached would show up at the proceedings we firmly believe are unconstitutional," Schoen said.
Can Trump be subpoenaed for testimony?
While the request from the House Democrats was not a mandate to Trump for testifying, it did make it clear that the liberal lawmakers were determined to present an aggressive case against him despite the fact that he had left the White House and was currently a private citizen. Trump was requested to voluntarily testify as early as next Monday, February 8, and no later than next Thursday, February 11.
But now that it has become clear that the former president has no plans to testify, the House will have no other option but to issue a subpoena if they want him to talk under oath.
However, the process of issuing such a subpoena might not be an easy job as it would require support from a majority of the Senate. Not only Senate Republicans but lawmakers from the other part of the aisle too might not be as willing to go forward with a subpoena. Senator Richard Blumenthal, a Connecticut Democrat, said he would be inclined to consider the arguments in favor of a subpoena.
He added, “the more I see what’s already in the public record, the more powerful the case” against Trump, based on his own words and actions. Trump’s speeches before and after the attack on the Capitol “are the most powerful evidence”, Blumenthal said. “His own words incriminate him. They show his guilty intent.”
Senator Lindsey Graham (R-SC) called the request for Trump's testimony "a political showboat move." He said he hoped Trump would not testify, saying it would not "be in anybody’s interest."
"It’s just a nightmare for the country to do this, it’s just a political showboat move to do this and they didn’t call him in the House,” he said. Sen. Joe Manchin, (D-VA), said it would be a "dog and pony show" if Trump testified. And Sen Chris Coons, (D-DE), told reporters it would be a "terrible idea" for Trump to testify, USA Today reported.
Trump as a witness
Although the Senate is far from making a decision on whether it will call witnesses during the trial, House Democratic lawmakers prosecuting the case, Trump’s defense team and senators will be allowed to ask questions if it were to happen. If a witness resists a subpoena, the Senate could vote to subpoena testimony.
Although a counsel for Congress is typically authorized to ask federal courts to enforce subpoenas, those decisions can take months or years to resolve. This is the reason the Justice Department under the Trump administration fought numerous subpoenas for witnesses and documents during his first impeachment over his dealings with Ukraine back in January 2020.
When Blumenthal was asked if Trump could be brought in as a witness in his own trial, he told reporters, he'd be "inclined" to let the managers "try the case as they see fit" if they thought Trump's testimony would "add weight to the evidence." He added, "There's no innocent explanation for what he did."