Donald Trump hates being nailed down. One of the hallmarks of his presidency was his mercurial positions, constantly shifting, sometimes denying words that had come from his mouth just the previous day.
Now, ahead of his second impeachment trial, the House Democrats acting as prosecutors are trying to get Trump on the record, under oath. Unlike past attempts to nail down Trump on the facts, this time they have the power to make it happen.
Both sides filed their initial trial briefs Tuesday, in which Trump's defense issued several eyebrow-raising denials of the facts laid out in the impeachment managers' case. And the managers have some questions.
"In light of your disputing these factual allegations, I write to you to invite you to provide testimony under oath, either before or during the Senate impeachment trial," the lead impeachment manager, Rep. Jamie Raskin, D-Md., wrote in a letter sent to Trump by email Thursday.
Raskin warned that if the invitation is declined, "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."
Trump has wriggled out of testifying under oath at every opportunity, despite his penchant for threatening lawsuits.
Well, it only took roughly 2½ hours for one of Trump's impeachment attorneys, Bruce Castor, to tell NBC News that Raskin's invitation was most definitely declined. "It's a publicity stunt in order to make up for the weakness of the House managers' case," Castor said, calling the case "a winner" for the former president.
"... Sure, Jan," as the kids say.
Castor's quick denial of the impeachment managers' request isn't the end of this, though — nor should it be. But it's easy to see why Trump's attorneys aren't thrilled about former prosecutors like Rep. Eric Swalwell, D-Calif., or Rep. Ted Lieu, D-Calif., grilling their client.
Trump has wriggled out of testifying under oath at every opportunity, despite his penchant for threatening lawsuits. He spent his term using the presidency as a shield against being deposed — a process that leaves him open to charges of perjury for lying under oath.
When he did sue journalist Timothy O'Brien for libel in 2006, O'Brien's attorneys deposed him for two days. It was an embarrassing performance overall; Trump had to acknowledge 30 times that he'd lied publicly about things like his wealth and how much money he owed. A 2016 deposition also recorded Trump acting as a loose cannon, unprepared and uninterested in details.
It was fortunate for Trump that he didn't face a similar in-person grilling during the Russia investigation. Special counsel Robert Mueller was wary about issuing a subpoena to a sitting president, especially given the odds that he'd go to court to fight the summons. After months of dithering, toward the end of the investigation, Mueller agreed to allow to let Trump answer a series of written questions instead of sitting down for a live interview.
Even then, Trump's answers were evasive and, as Mueller indicated when he testified to Congress about his final report in 2019, potentially perjurious.
The next year, during the first impeachment trial, House Democrats never bothered to tried to subpoena Trump, again opting for speed over a lengthy court fight. Instead, they focused on getting other Trump administration officials to testify, with varying degrees of success.
Things are different enough this time around that Democrats should absolutely force Trump to testify. First, he is finally out of office, depriving him of his favorite defense. And while his defense rests largely upon the argument that it's unconstitutional to convict a former president in an impeachment trial, that doesn't mean the Senate can't demand that he appear.
As Raskin noted in his letter to Trump, "the Supreme Court held just last year that you were not immune from legal process while serving as President — so there is no doubt that you can testify in these proceedings."
Second, the Senate has all the power it needs to guarantee Trump's cooperation — whether he wants to give it or not. The body's rules for impeachment trials state that the Senate has the power to "compel the attendance of witnesses" and "to enforce obedience to its orders, mandates, writes, precepts, and judgements." That same power is granted to Sen. Patrick Leahy, D-Vt., who will preside over the trial in his role as Senate president pro tempore.
This presents an interesting scenario in which the sergeant-at-arms is ordered to bring the former president back to Washington from Mar-a-Lago under threat of arrest.
Any challenge to Leahy's authority would be likely to fail — Democrats and moderate Republicans have the numbers to beat back any procedural issues that pro-Trump senators might bring up. And in terms of the trial's scope, a majority is all that's needed to make decisions, no filibuster allowed.
The rules also say the Senate sergeant-at-arms may "employ such aid and assistance as necessary to enforce" any orders and writs. It's a power that has been used to round up witnesses who refused to testify or corral senators to provide a quorum. This presents an interesting scenario in which the sergeant-at-arms is ordered to bring the former president back to Washington from Mar-a-Lago under threat of arrest. (Reuters noted in 2019 that it's been almost a century since Congress used this power, but it's still on the table.)
And finally, unlike other legal issues that Trump has faced, this is out of the hands of the normal judicial system. The Constitution grants the Senate "the sole Power to try all Impeachments." There's nothing in legal precedence that would let the courts issue an injunction to hit pause on an impeachment trial, nor would most judges even be likely to try.
This may be the best shot that Democrats — and the country — have to get Trump questioned under oath about his attempts to overturn the election. There are risks involved, for sure, which I'll go into next week. But the benefits far outweigh the concerns.