‘Have him testify’: Democrats dare Trump impeachment lawyers to provide exculpatory evidence

As the second impeachment trial against Donald Trump wound down on Friday, lead House manager Jamie Raskin issued a challenge to the former president to appear before them and explain what he was doing during the insurrection at the US Capitol on 6 January.

Mr Trump’s attorney Michael van der Veen had repeatedly harangued the impeachment managers during the trial’s question-and-answer portion on Friday for failing to conduct a thorough “investigation” to support their claim that the ex-president incited that insurrection and failed to adequately turn the rioters away once it had commenced.

The House managers relied almost exclusively on “hearsay” reports from the media and the contents of the president’s tweets and public video statements from that day to recreate a timeline of the his actions, Mr Van der Veen suggested.

Mr Raskin fired back that he and his colleagues were forced to truncate their collection of evidence to move forward with an orderly and timely impeachment and that Mr Trump, who is in “sole possession” of the evidence of what he was doing during the attack, has so far refused to answer lawmakers’ questions.

“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,” Mr Raskin said, “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!’”

With an historic level of bipartisan support, the House voted to impeach Mr Trump on 13 January for his role in the riot that took place just one week earlier.

Both Republican and Democratic senators on Friday asked each side multiple iterations of the same questions: when did Mr Trump know the US Capitol had been breached on 6 January? When did he know Mike Pence was in danger, and what was his response to that knowledge? What actions did he take to stamp out the riot, and when did he take such actions?

“Please be as detailed as possible,” GOP Senators Lisa Murkowski of Alaska and Susan Collins of Maine implored in their version of the question.

Those questions were met by Mr Trump’s counsel with virtually no specifics, as Mr Van der Veen thrust the responsibility for providing such evidence onto the impeachment managers prosecuting the case.

Mr Van der Veen did at one point mention one of Mr Trump’s tweets from the afternoon of 6 January — as the riot was still raging — calling on the mob to “stay peaceful”.

By the time of that tweet, rioters had already been bludgeoning US Capitol Police officers for over half an hour and were in the process of taking over the Senate chamber. The onslaught against police officers continued for hours before Mr Trump finally told them to “go home with love and in peace”. He encouraged his supporters, who he dubbed “patriots”, to “[r]emember this day forever!”

As senators kept asking that same question — when did Mr Trump know about the security breach, and what did he do about it? — they kept getting the same response from the ex-president’s counsel.

“If an investigation were done, we would have an answer to that,” Mr Van der Veen said at one point.

Instead, Democrats relied on “hearsay on top of hearsay on top of reports that are of hearsay”, he later added. “What they just tried to do was say that it’s our burden to bring them evidence to prove their case. And it’s not. It’s not our burden to bring any evidence forward at all.”

Mr Raskin argued before the Senate on Friday that Mr Van der Veen was improperly applying to the impeachment trial a standard of evidence required for criminal trials.

But the impeachment trial is not a criminal trial, he explained.

While conviction in a criminal trial can result in the defendant being stripped of his life (death penalty), his liberty (time in prison), or his property (forfeiture of ill-gotten gains), an impeachment conviction results in removal from office and, potentially, disqualification from holding public office in the future.

With that understanding, Mr Raskin argued, Mr Trump’s failure to respond to the impeachment managers’ questions has created what is known in legal terms as a “strong adverse inference” about the evidence against him.

“What's that?” Mr Raskin asked, rhetorically, before launching into professor mode:

“Well, Justice [Antonin] Scalia was the great champion of it: if you don't testify in a criminal case, it can't be used against you. Everybody knows that. That's the Fifth Amendment privilege against self-incrimination. But if it's a civil case, and you plead the Fifth [Amendment] or 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,” Mr Raskin said.

Mr Raskin had made clear to Mr Trump in his letter from earlier this month requesting his testimony that if he failed to deliver answers, the impeachment managers would hold it against him through the principle of strong adverse inference.

“That is totally available to us,” Mr Raskin confirmed on Friday.

The Senate is expected to reconvene on Saturday at 1000 local time [1500 GMT] to hear closing arguments. It will vote to deliver a verdict around 1500 local time [2000 GMT].