Trump has walked into ‘jiu jitsu’ trap by refusing to testify at impeachment trial, legal analyst says

Analysts explain how silence in front of Senate could prove fatal for future criminal conviction

After refusing to testify at his Senate impeachment trial, Donald Trump has walked right into a “constitutional jiu jitsu” trap set up by Democrats who want to convict him, a legal analyst has warned.

Democrats, led by impeachment manager Jamie Raskin, called on Mr Trump on Thursday to appear as a witness at the Senate trial starting on 9 February, with claims he incited an insurrection on the Capitol.

The request laid down a challenge to the ex-president, who was not subpoenaed to testify, as expected. His lawyers denounced the request as a “public relations stunt.”

Mr Trump, responding to the request through adviser Jason Miller, separately called the process “unconstitutional”.

With Democrats already pointing to Mr Trump’s culpability, MSNBC’s legal analyst Danny Cevallos compared the request made by Mr Raskin as a “constitutional jiu jitsu” trap, with the former president risking a future criminal trial.

"Jamie Raskin is using a great bit of constitutional jujitsu here," Cevallos said on Saturday morning. "They did not issue a subpoena, they just requested or invited him to come testify and president Trump declined.”

He said that meant the Senate would be able to make “that negative inference from a defendant's silence, [that] is allowed,” which would set a precedent for any future criminal trial against Mr Trump.

Mr Cevallos’s remarks come after an independent reporter, Marcy Wheeler, argued that Mr Trump’s refusal to take part would be the safest route for the former president in front of the Senate, but could put him at risk of criminal prosecution afterwards.

“The House [will] assume Trump's entire claim to offering any factual response is false, as it is," wrote Ms Wheeler, who warned that by using the Fifth Amendment - which allows people not to testify against themselves - Mr Trump would be “admitting that his First Amendment speech might expose him criminally”.

Ms Wheeler pointed to Mr Trump’s impeachment lawyers, who on Tuesday revealed they would argue against claims the ex-president threatened “the democratic system, [or] interfered with the peaceful transition of power,” following the 2020 election.

However, Mr Trump baselessly claimed the presidential election was “stolen” or “rigged”, and avoided acknowledging Joe Biden as president elect until after the assault on Congress on 6 January by those who supported such claims.

Senators, who are split 50-50 between Republicans and Democrats, are not expected to convict the former president after 45 Republicans recently voted to dismiss the trial altogether.

Democrats believe a trial is necessary to provide a measure of accountability for the attack, while aiming to hold a separate vote to disqualify him from seeking office again.