Wednesday, April 25, 2018

Consplaining the Self Incrimination Clause of the Fifth Amendment

So everyone who hates Trump with a white hot passion (a category in which I squarely put myself, by the way) was giddy today with news that sebaceous humanoid paramecium and soon-to-be-sanctioned-if-not-disbarred Trump toadie Michael Cohen is “pleading the fifth” in the Stormy Daniels civil suit over a non-disclosure agreement, due to the ongoing criminal probe against him.

Specifically, he said in a court filing that:

I will assert my 5th amendment rights in connection with all proceedings in this case due to the [overlapping] ongoing criminal investigation by the FBI and U.S. Attorney for the Southern District of New York.
We can speculate all we want over whether this is an indication of Michael Cohen’s guilt or not, and for my part I hope he’s guilty AF and goes to jail for a long time along with Cheeto Satan. But the constitutional lawyer in me knows that this type of schadenfreude is self-indulgent, hypocritical civic idiocy.

About twelve bazillion books and law review articles have been written on this by serious scholars and lawyers much smarter than me, so I’m certainly not going to pretend that this blog post will add anything new. 

I’m just dropping a hot take to point out that the Fifth Amendment exists to protect every citizen from prosecutorial overreach by the government—even felonious lawyers who disgrace the bar.

Here’s what the Supreme Court said in 1951 in Ullmann v. United States about the self-incrimination clause:
Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege. Such a view does scant honor to the patriots who sponsored the Bill of Rights as a condition to acceptance of the Constitution by the ratifying States. The Founders of the Nation were not naive or disregardful of the interests of justice. . . . They made a judgment, and expressed it in our fundamental law, that it were better for an occasional crime to go unpunished than that the prosecution should be free to build up a criminal case in whole or in part, with the assistance of enforced disclosures by the accused. The privilege against self-incrimination serves as a protection to the innocent as well as to the guilty, and we have been admonished that it should be given a liberal application.
People love to say, "well Trump says everyone who pleads the Fifth is guilty." Maybe in this case, he's right. I hope he is. But Trump is a pathological liar, not a constitutional scholar. He said Obama was born in Kenya and that it wasn’t raining when it was. His opinion on the constitution means precisely dick.

Let it be clear: Our constitutional democracy has never--NEVER--been in graver danger. For that reason, it would do us all a lot of good to remember why these rights exist in the first place, even/especially when we’re rooting against the people who are relying on them.

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