Tag Archives: 5th Amendment

A Legal Primer – It’s Not Complicated

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There has been much coverage of the arrest and immediate deportation of alleged “criminals” and “illegals” by the Trump administration. These actions are apparently part of the Republican plan to “make America white,” although in recent days Trump has pulled back the aggression as to certain workers. Why? Because he has realized that his shoot-first-think-later approach to domination may be offending some of his supporters whose businesses depend on immigrant labor. But from day-to-day Trump’s erratic approach to governance, largely made up on the fly, can change radically.

This primer is not, however, about our national immigration policy. It is instead about elementary constitutional and legal processes that are an essential part of our legal system. These principles apply to immigrants as well as citizens, and one day they might apply to you, as when Trump’s masked and armed men who refuse of identify themselves pull your car over or visit you at home or work.

First, the Constitution itself.

Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Fifth Amendment:

….  nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. 

To keep this manageable, we’re going to focus on the text that I have bolded. But first we must include the function of magistrates. Virginia law is typical:

A principal function of a magistrate is to provide an independent, unbiased review of complaints of criminal conduct brought by law enforcement …. Magistrate duties include issuing various types of processes such as arrest warrants, summonses, search warrants, emergency protective orders, emergency custody orders, and certain civil warrants. Magistrates also conduct bail hearings in instances in which an individual is arrested to determine under what conditions the arrestee should be released from custody prior to trial.

Finally, there is the Supreme Court decision in Miranda v. Arizona (1966) that applied the Fifth and Sixth Amendments to the arrest phase of a criminal case. The Court held that any person in custody must, before being interrogated, be informed of the right to remain silent and the right to assistance of an attorney.

One other thing –no evidence has been produced that the armed masked men working for ICE and conducting what amount to kidnappings for the government have any meaningful training in the legal principles that govern what they are doing.

Now, the facts: let’s say you’re in a park with your two young children. An unmarked van pulls up and several masked men jump out. They are heavily armed. They tell you that you are under arrest for violating you immigration status, and that you must come with them. Or maybe they don’t tell you anything except to get the van, NOW!

You protest that you are an American citizen. You demand they explain the basis for the charges and that they identify themselves. They refuse. You are then handcuffed and forced into the van. You protest that your children are with you and have no one to care for them because your spouse is away on business. The men ignore you.

The next thing you know, you are on an airplane headed to an unknown destination but that soon becomes clear is not in the United States.

In my hypothetical case, you are in fact an American citizen and the men are wrong about who you are. They have been misinformed by someone in the U.S. Department of Homeland Security.

Your rights have been violated in multiple ways. No warrant for your arrest has been issued, you are not given your Miranda warnings, and you are not taken before a magistrate who determines whether your arrest is proper. You are given no opportunity to consult counsel who can present your defense that you are a U.S. citizen and not subject to deportation. Your right to a trial has been ignored. And you have been prevented from caring for your children who have been left in the hands of, hopefully, kind strangers.

This scenario has happened many times under the Trump administration’s “deport the criminal immigrants” policy. It is not complicated. The Constitution’s due process requirements refer to “persons,” not to “citizens.” It means what it says.

The reasons for the various “rules” and “principles” are straightforward and obvious when you think about it. The legal process, while slow, is designed to prevent mistakes. It is designed to assure that every person accused of a crime has a fair chance to understand the charges, to seek professional help, and to avoid mistakes that could impose criminal penalties on the wrong person. While Trump has complained by providing due process may require thousands of trials, that does not negate the rights of individuals to the protections of the Constitution.

The Trump administration’s unleashing of masked men who refuse to identify themselves and whose approach creates strong possibilities for mistaken arrests, and which imposes extreme penalties (removal to other states or, worse, deportation to foreign countries) with no opportunity to consult counsel, or to understand the charges, is certain to deny constitutional protections to the accused.

The idea that persons in the United States may be removed from the street or their home or a job, without notice, by unidentified armed men, transferred to other states and then removed from the country to a foreign prison without any opportunity to consult counsel, without any opportunity to protect family members including small children dependent on them, is unconstitutional, unlawful, and un-American. It is almost certainly a human rights violation and is unacceptable in the U.S. system of law.

And under the Trump administration it is happening every day.

Force Trump to Plead the 5th Amendment

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Shortly after Brett Kavanaugh, with full support from the Republicans on the Senate Judiciary Committee, stonewalled on all the important questions put to him, and may have lied about others, the news arrived that Trump’s attorneys have advised that Trump will not respond to questions from Special Prosecutor Robert Mueller in any manner, oral or in writing. This latest zigzag in Trump’s position regarding the Russia investigation may be a direct result of Kavanaugh signaling that nothing Trump does could lead Kavanaugh, as a Supreme Court Justice, to decide in favor of presidential accountability while in office.

Given that the Republicans have once again prevented the Senate from fulfilling its constitutional mission of advising and consenting to a presidential appointment to the highest court, it seems to me it is time to call the question on the bigger questions related to presidential accountability. It is time, I suggest, that Mueller should stop fooling around with Giuliani and camp and subpoena Trump to testify under oath about the Russia collusion issues before a grand jury. This would, of course, expose Trump to huge risks that he would perjure himself, further establishing the existence of “high crimes and misdemeanors,” the Constitutional threshold for impeachment. For that reason, among others, Trump would undoubtedly refuse to comply with the subpoena and the issue would then be put to the courts.

If, as is almost certain, Brett Kavanaugh is confirmed and the issue reaches the high court, which it will, Kavanaugh will be faced with the non-hypothetical question whether he will recuse himself from a decision regarding the power of the presidency to stand above the laws that apply to every other person in the country. Having just vanquished a king to gain the freedom of a new country through the Declaration of Independence and the Constitution, it is quite unimaginable that the Founding Fathers intended such immunity. Nevertheless, the issue has not been decided by the Supreme Court. It is also hard to imagine a better case to present the issue than one in which the nation’s chief executive declares that he is not accountable to even testify about his possible corrupt obstruction of justice and interference in the election that placed him in office. This is likely the best case that will ever exist for getting a ruling that the president is not above the law.

Of course, the president would have the ability to avail himself of the protection against self-incrimination afforded other citizens under the 5th Amendment. To avoid incriminating himself,

Trump would almost certainly be advised by his attorneys to plead the 5th Amendment in response to all questions put to him by Mueller’s investigators.

Imagine for a moment that Trump is asked direct questions about his knowledge of contacts with Russians, cooperation with Russians and more regarding the suborning of the election that we know to have occurred in 2016. He has four choices.

One, tell the truth. That’s probably not a good choice for him since the publicly available information strongly suggests his active complicity in the Russian election activities. We don’t know what Mueller knows but neither does Trump. In any case, truth-speaking is not his style, especially when it will make him look bad, so telling the truth is likely off the table.

Option Two, lie. This is the course he would be most tempted to take since he, and this is thoroughly and incontestably documented, lies multiple times a day about all manner of things, great and small. Telling lies about his conduct in this situation would expose him to a perjury charge, however, not a place he would want to be. Recall that he does not know what Mueller knows and can prove. Trump’s attorneys would be, indeed have said they are, so concerned about Trump’s propensity to fabricate that they would likely insist that he take Option Three.

Option Three, plead the 5th Amendment. Refuse to answer “on the grounds that answering may incriminate me.” Under American law, pleading the 5th does not constitute an admission of guilt and pleading may not by itself be the basis for a finding of guilt. In the minds of many members of the public, however, a president pleading the 5th Amendment on matters of this seriousness would be tantamount to a confession.

Option Four, refuse to appear for questioning. This might be seen as the “nuclear option,” whereby the president says, in effect, “I refuse to be held accountable and will not cooperate in the process that is trying to destroy me.” This question, I believe, was decided by the Supreme Court in United States v. Nixon, 418 U.S. 683 (1974), a unanimous decision by the eight Justices participating (Justice Rehnquist did not participate). The opinion upheld a subpoena directing the president to produce to a grand jury certain tape recordings and documents relating to his conversations with aides and advisers. The grand jury’s prior indictment of seven people had named the president as an “unindicted coconspirator” in defrauding the United States and obstructing justice.

Trump’s attorneys would certainly argue that the Nixon decision was “distinguishable” from the Trump case. That is one of an attorney’s jobs and there is no doubt Trump’s lawyers would present the question to the courts, which would then make the final decision regarding the scope of the president’s immunity from the legal processes that apply to everyone else. To simply refuse to cooperate would, I think, not only create a “constitutional crisis,” but it would go a long way to weakening Trump’s political support in Congress.

I do not suggest, of course, that all Trumpers would turn on him in these circumstances. For reasons not fully understood, there apparently are millions of people who are so entranced by the Trump persona that nothing he does or says, or fails to do or say, will change their view of him. But they are already a minority of the voting population and, I suggest, the president taking the 5th Amendment on questions related to subverting the American electoral process or, worse, simply refusing to cooperate, would move many voters across the line. Unmoved though they may be by the reality that Trump supports policies directly injurious to their economic, social and physical well-being, many of those at the margin of acceptance would finally say “enough.” We don’t need them all to achieve a massive reversal in the polity in favor of reason and the rule of law. If, on the other hand, I am wrong about this, we are probably no worse off than before but we will have a better understanding of where the law stands on these issues and can take whatever actions are then necessary and appropriate.

Therefore, I submit, it is time to call the question on Trump. Time to force him to choose between telling the truth, lying, pleading the 5th Amendment or simply declaring “I am above the law.”