The Fifth Amendment and Former Guy (Trump)
My oh my! Former Guy appeared for a deposition – testimony under oath – on August 10, 2022. He relied on the Fifth Amendment to the U.S. Constitution as a basis for providing no substantive responses.
The Fifth Amendment
The relevant language in the constitutional amendment states: “No person … shall be compelled in a criminal case to be a witness against himself … .” I don’t know what Former Guy said, in fact: Reporting suggests that he used the words “same answer” repeatedly. Generally, a witness who relies on the Fifth Amendment says, more or less, “I refuse to answer on the grounds that an answer may tend to incriminate me.”
The invocation of the Fifth Amendment occurred, on Wednesday, in a civil case. Further, it involved state court proceedings. I confess that I do not fully understand the interplay associated with the Fifth Amendment in civil cases. Or the incorporation of the Bill of Rights into state law. Of course, these concepts bring to mind textualism and strict construction. The watchwords of the Right. Forgotten here, I guess.
In a criminal case, a defendant who chooses not to testify has a right to a “no adverse inferences” jury instruction. Backing up, jury instructions – which the jury gets from the court, at the end of the trial – inform the jury about applicable law and their duties. The “no adverse inferences” instruction tells the jury it must not make negative assumptions about a defendant’s decision to stay mum.
Why do courts give this instruction? Because people assume innocent people will share their facts, gladly, to straighten things out. Or, as one person – aka Former Guy aka Donald J. Trump – put it in 2016, “If you’re innocent, why are you taking the Fifth Amendment?”
Taking the Fifth: Reality
Okay, it’s time to Talk Turkey. (FYI, the term has no certain origins, but it certain connotes Straight Talk (Express).) Donald Trump failed to answer questions because, if he answered them truthfully, he’d be facing significant civil penalties and, potentially, criminal charges. I have learned, over just about 41 years as a lawyer, that what constitutes criminal conduct is, shall we say, murky. So, in spades, when we look at business conduct. Much depends on intent, on the quantum of offenses, on the amounts of money at issue, and on prosecutorial discretion. Still, call it a BFD when a man who regards himself as a successful businessman and respected member of our community asserts his Fifth Amendment rights.
As Mr. Trump observed in 2016, innocent people don’t assert the privilege against self-incrimination. It’s a right our constitutional structure provides for people who have committed crimes. Guilty people! Anyone with something to hide can take advantage of the right against self-incrimination, but there’s nothing honorable about doing so!
That Other Thing
Events have overtaken my post. The business issues in New York – serious stuff, for sure – matter little when we have an FPOTUS who took documents evidencing our most serious national secrets. Secrets no one other than governmental officials should ever see. Why would he have them? Store them in rooms / a basement of a resort in Florida, with no controls, whatsoever? (By the way, how did he end up having them?)
What we have here, from Mr. Trump, is a Big Fuck You to the whole notion of government as a force for good, for protecting residents from those who wish to harm us. Frankly, if Mr. Trump does not work for Russia or another sovereign nation, he’s dumber than anyone might think he is. He’s doing somebody’s bidding at every turn, and if he’s not getting something for his efforts, he’s a GD fool.
I don’t know Attorney General Merrick Garland, but I know people who share his traits and styles. Careful, cautious people. NOT Rudolph Giuliani or his ilk. I am guessing AG Garland has slept poorly of late.
I face challenging issues every day and some of them awaken me, here and there. That said, I will not trade my life for the Garland world, ever. I will, however, say thank you. Thank You Sir, for your service to our nation!
Some Concluding Words
I don’t know what to say about Mr. Trump’s supporters, truly. They’re not a homogeneous group, and I do not fully understand what drives them to pay any mind to an overblown, dumbass charlatan! To accept his everchanging explanations: There are no documents. The FBI planted those documents. They’re not classified. I declassified them. Hey, doesn’t everybody bring work home from the office? To follow blindly such a sorry excuse for a human being.
Mr. Trump has trashed our country and everything it stands for. We will recover …or not. In the meantime, we must: (a) live our lives, and (b) speak up, always, against the disgraces he visits upon us. And, to the extent by which we encounter those who have supported Mr. Trump and might have doubts, I hope we can ignore the past and look out into the shining sun of a new day.