Wednesday, October 9, 2019

President Trump's Failure to Cooperate in the Impeachment Inquiry Can Be Used Against Him


President Trump has taken a broad, unprecedented position against the House of Representatives' impeachment inquiry of his attempts to secure Ukrainian assistance in undermining the Democrats in the 2020 election and other matters.  He is refusing to cooperate in any way whatsoever, and is ordering at least some witnesses not to cooperate.  By stonewalling the House, he appears to hope to stall and delay the inquiry until it loses steam and, perhaps, popular support.

However, his choice not to cooperate can be used against him.  The U.S. Supreme Court has ruled that when a person asserts their Fifth Amendment right against self-incrimination, a court can draw an adverse inference from the assertion of the right.  See Baxter v. Palmigiano, 425 U.S. 308, 320 (1976).  This can only be done in civil proceedings, not in a criminal prosecution.  But an impeachment proceeding isn't a criminal proceeding.  It is a civil proceeding, where the worst case consequence is removal from office.  There is no prison time, no fine, no probation, and no public service.  The President's silence can be viewed by the House during impeachment proceedings, and by the Senate during the trial on the articles of impeachment, as evidence that the President engaged in high crimes and/or misdemeanors.  The adverse inference, if taken, would be added to the other evidence that the House accumulates and the entirety of the evidence (including the adverse inference) could constitute the evidentiary basis for impeachment and conviction.