August 12, 2022

The Most Bizarre Week in American History.

by Hal Gershowitz

Comments Below

Where to begin?

I began this column in defense of the fifth amendment and former president Trump’s wise decision to invoke it with respect to his deposition in a civil case brought against him by the New York State Attorney General. Almost simultaneously, news of the FBI’s search of Mar-a-Lago broke, heralding what might be the most bizarre week in American history.

The government had been trying, rather patiently, to retrieve from Mar-a-Lago extremely sensitive documents, some of which are marked Top Secret and which Trump had been resisting returning to the U.S. Archives as he was required to do upon leaving office. The government had been demanding the files almost from the time Trump departed Washington. After months of apparent stonewalling by Trump, the Department of Justice sought and received a warrant to search the premises at Mar-a-Lago in order to retrieve the files that Trump seemed determined to keep.

Then events turned really bizarre. Trump, almost simultaneously, announced that the FBI may have planted the highly sensitive, top-secret files and that they weren’t really top-secret because when he took them, “they were deemed to be declassified” because he took the allegedly planted files to the residential quarters at the White House to read, and that, anyway, all the FBI had to do was ask for the files, and he would have gladly handed them over…except the government had been demanding the files for many months without success.

There is quite a bit to unpack here. First, why were any government files at Mar-a-Lago? Then, there is a procedure for the presidential declassification of secret files, let alone top-secret files, and there seems to be no record of such declassification, other than Trump’s retroactive inference that he had declassified them while leaving no record of the declassification…and why in the world would a President declassify apparently highly sensitive nuclear files in the first place. And, of course, the contradictory dual statements that the files had been deemed declassified (by Trump) and therefore no longer a secret, but also that the allegedly benign declassified files had been planted at Mar-a-Lago by the FBI. We’ll let the Mar-a-Lago purloined files caper marinate a bit longer before commenting further. Stay tuned.

Meanwhile, lost in all the furor over the Justice Department’s action to retrieve the country’s files from Mar-a-Lago, was the contretemps over former President Trump pleading the 5th in a deposition regarding a civil case pending in the state of New York.

Now, I enjoy well-deserved schadenfreude like everyone else, but not in this case.

I know, I know, Trump has taunted others for taking the fifth, proclaiming that only the guilty take the fifth, and asking why would an innocent person take the fifth and that taking the fifth is what mobsters do.

But that was just Trump being Trump.

When it came time for him to be deposed by lawyers from New York Attorney General Letitia James’ office, he said, more or less, what every “target” says when they exercise their 5th amendment rights. In a prepared statement, Trump said, “Under the advice of my counsel, I declined to answer the questions under the rights and privileges afforded to every citizen under the United States Constitution.” Good for him. That is precisely what he should have done.

Trump’s deposition was part of a three-year civil investigation into whether the Trump Organization misled lenders, insurers, and tax authorities by providing them misleading financial statements. In a statement released during the deposition, Trump criticized James, calling her a “renegade prosecutor” running a “vindictive and self-serving fishing expedition.” Before the deposition began, Trump said he would be “seeing” James “for a continuation of the greatest Witch Hunt in U.S. history! My great company, and myself, are being attacked from all sides. Banana Republic!” Again, Trump being Trump.

Nonetheless, he did the right thing by asserting his 5th amendment right against self-incrimination. Evidence and testimony gathered in a civil case such as this can be used against a defendant in a concurrent criminal case, which is also pending against Trump.

The 5th amendment to the United States Constitution represents a fundamental right every American should celebrate. It means, in our country, no one, from the most obscure among us to the most celebrated among us, ever has to prostrate themselves before an accusing government. It means that no one can be compelled to assist any accusing state or the federal government in a prosecution of which they are a probable or possible target. It says to the government, “you want to make a case against me, then prove you can make that case without me as your witness.”

Every American should celebrate the 5th amendment. And any American could need the 5th amendment to protect themselves against any powerful accusing government authority. In America, anyone accused of a crime has the absolute right to remain silent. As everyone who has ever watched a crime thriller knows, a person about to be charged with a crime must be warned that whatever they say, if they choose to say anything at all, can be used against them in a court of law. The 5th amendment also means the government has only one crack at a defendant for the same alleged offense. That is, it protects all Americans against double jeopardy. No one can be charged a second time for a crime for which they have once been acquitted. So, if the government is going to make a case, it had better be well-founded. That’s true in any case brought against Donald Trump, just as it would be true in any case brought against any other American citizen.

The 5th amendment is vital. No one should disparage Trump or anyone else for asserting their 5th amendment right, even in a civil case as happened this week when Trump asserted his 5th amendment right not to answer questions. That said, in a civil case (as compared to a criminal case), a jury can infer or impute adverse implications when the 5th amendment is asserted because neither the life nor the freedom of the defendant is a stake. In a criminal case, a defendant doesn’t even have to testify, and the accusing authority wouldn’t even be allowed to tell a jury whether a defendant asserted any fifth amendment right during questioning. While 5th amendment protection has been infused into the sinews of American jurisprudence since before the founding, it wasn’t until much later that the right against self-incrimination was upheld for civil as well as criminal defendants. That is a good thing.

Trump found himself between the proverbial rock and a hard place when he appeared this week for his court-ordered deposition. While James’ investigation pertains to an impending civil case, it is known that she is sharing what she is finding with Manhattan District Attorney Alvin Bragg, who says a criminal investigation of Trump is ongoing. The former president’s lawyers maintain that their client is in a Catch-22 where asserting his rights can put him in civil jeopardy. And they are right.

While Trump was perfectly entitled to take the fifth, just as any citizen would be, there are risks. Jennifer Rodgers, the former U.S. Justice Department prosecutor for the very aggressive Southern District, believes Trump did the wise thing. “The negative inference that can be drawn at a civil trial down the road isn’t great for him. That’s the consequence of refusing to testify today, that the jury will be instructed that they can infer that his testimony would have harmed his case. Still, it’s small potatoes compared to the substantial risk that he would disclose damaging information that could be used against him civilly and/or criminally or that he would be caught in a lie to avoid disclosing harmful information and thereby open himself up to perjury charges, or both,” she said.

Everyone’s fifth amendment right is carefully guarded in our criminal justice system. Since American colonial days, it has been everyone’s defense against coercive, star-chamber proceedings. Coercive, because confessions in pre-seventeenth-century England would be routinely, and heavy-handedly, coerced or compelled. Our legal system is founded on adversarial, rather than inquisitive, proceedings. That means it’s the government’s burden to provide evidence of guilt, not the defendant’s obligation.

Americans have been free from the risk of self-incrimination even in colonial days and long before there was a Constitution and a Bill of Rights. Protection against self-incrimination was enshrined in nine state constitutions and was considered common law throughout most of the colonies before there was the United States of America.

Readers of this column know I am not a fan of former President Trump. However, whether the reader is, or is not, an advocate of the former president, the reader should be an advocate of the 5th amendment. Just as it protects Donald Trump, it protects anyone hauled before the bar of justice.

The week of August 8th, 2020. Mark it down. It rates as one of the most bizarre weeks in American history.

All comments regarding these essays, whether they express agreement, disagreement, or an alternate view, are appreciated and welcome. Comments that do not pertain to the subject of the essay or which are ad hominem references to other commenters are not acceptable and will be deleted.

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13 responses to “The Most Bizarre Week in American History.”

  1. Susan Duman says:

    As usual, my gratitude.
    Have a good Sunday.

  2. T Ackermann says:

    It wouldn’t be a proper Sunday without your detailed exploration of the current hot topics Hal. Always appreciate how you illuminate the key issues for us.

  3. Val Kaplan says:

    You are absolutely right to enshrine the 5th amendment as a cornerstone of our democracy, regardless of who the claimant is.

    But don’t you dare try to disenfranchise me of the legitimate human expression of schaudenfreud when applied to the person whose maniacal mission has been and continues to be the trashing, evading, mocking, debasing and destruction of every stone and bit of mortar in the structure of our already crumbling democracy.

  4. Jerry Halperin says:

    Hal, read yesterday that some of the files taken may have been privileged communications between Trump and his attorney. If this is so, it raises interesting legal questions about the government exceeding its investigative rights. More of this yet to come

  5. Mike says:

    Hal:

    Thank you for a cogent and logical explanation of trumps reason for invoking the 5th. I have heard from liberal commentators about the difference between trumps testimony in a civil law case versus Hillary Clinton’s testimony about Benghazi before Congress.

    These commentators and some of my liberal friends noted that Hillary never once invoked the Fifth. I reminded them that Hillary was testifying before a congressional committee not being questioned in conjunction with a civil lawsuit that could also impact a criminal investigation.

    There are two other points where and I think some of your readers would welcome your thoughts.

    First, listening to Merrick Garland say that “justice is blind” was laughable to me and many others. There is no evidence that the FBI and DOJ are pursuing the Hunter Biden laptop issue with any vigor. And when you heard James Comey say that “ yeah, Hillary probably violated some laws but no reasonable prosecutor would likely pursue the case,” And then watch the FBI raid Trump’s house, are you at all concerned about the appearance of a double standard. In other words justice isn’t blind at all. Conservatives are treated differently than liberals.

    Second, are you at all concerned about the provision in the (comically named) Inflation Reduction Act about Government adding 87,000 IRS agents? In light of the Lois Lerner fiasco, can you see why a lot of people like me would be extremely concerned about where the Democrats are going with their legislation?

  6. Michael Kay says:

    Before 1966, no right against self-incrimination while in police custody existed. Until 1966, the 5th amendment simply meant that you could not be required to testify against yourself in a Courtroom.

    It was not until after Ernesto Arturo Miranda was arrested at his home in 1963 and after he was interrogated for two hours and after he confessed to kidnapping and rape and after his written confession was introduced as evidence against him at his trial and after he was sentenced to 20-30 years in prison, did we find out that in-custody interrogation violated the 5th Amendment. The Supreme Court of Arizona actually held that Miranda’s constitutional rights were not violated in obtaining his confession.

    Chief Justice Earl Warren wrote the 1966 opinion for a 5 to 4 Court: “…without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would otherwise do so freely… [Therefore, a defendant]…“must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”

    Anyone who has ever watched an episode of any police show knows that upon arrest (and volumes have been written about what is considered an arrest), the arrestee must be “Mirandized” using Justice Warren’s words.

    For the curious, Mr. Miranda was tried again, without his confession being used. He was again convicted. He ended up serving a total of 11 years in prison (from the time of his arrest). After leaving prison, he made some money selling autographed Miranda warning cards. He ended up back in prison for a parole violation. He was again released and one month after that second release he was stabbed to death in a bar room poker game fight over $2.00. (As an aside, the suspect in his murder was Mirandized, declined to talk to the police, was let go, fled and was never found).

    Finally, please note that Miranda was decided in 1966. Roe v. Wade was decided in 1973. I trust that Miranda is, in fact, well settled law. I had always believed that Roe was well settled law.

  7. Perry Altshule says:

    Defining the 5th amendment is not in question in my mind, not only is it his Constitutional right but it to is settled law
    I object to the Republicans who have always been the “law and order” party who have excoriated the Democrat party for defunding the police (where I happen to agree with them) for universally attacking the Constitutional right to a search warranty properly served
    Their deafening silence and outright attacking not only the FBI and DOJ but also the Constitution.
    I also resent the defense of a proven liar, to many instances to bring, but also his defense that he declassified is ludicrous
    I believe in a loyal opposition but the Republicans have made a mockery out of this. Starting with Merritt Garland being in limbo for over a year by then speaker of the house. Then asking the Governor of Georgia to find him 11,000votes with again deafening silence, and then charging voter fraud this Past President has ZERO credibility
    Perry Altshule

  8. Stuart Goldfine says:

    Hal, when will we head about Hunter Biden, the deadbeat son?

    He had a phony, lucrative job in the Ukraine. They he had a phony art sale. Then he has insider deals with China, collecting more money. He has a laptop full of incriminating evidence that he tried to erase.

    Finally, he marries his ex-sister-in-law,and leaves her for another floozy.

    Somehow, no one seems to care because he is a Democrat and a son of a senile President. When will the FBI raid his home?

    How about Hillary Clinton’s Foundation, now closed, but what was its purpose and what is Hillary doing with all this dough? Did she return the money to her donors?

  9. sheila says:

    Stuart Goldfine – Why do you continue to beat on this dead issue that has nothing to do with today’s essay. We are talking about a former president who engaged in a wide ranging conspiracy to shut down our election process, and who ultimately incited a violent coup against our government. Upon finally leaving the White House, he took with him (stole) top secret documents that he could have disseminated to leaders of countries that want to destroy us. Does this compare to anything you’re talking about? You need to stop with Hunter Biden already. His day in court will happen. But we are talking about the most serious offense an individual can commit against our country. We should all be thankful that for the moment, there is still rule of law in our country.

  10. Stuart Goldfine says:

    Sheila: How do you know those stolen documents could not have been planted when the FBI raided his home? No one will ever know. Why did the FBI wait for 2 years after Trump left office to raid his home?
    No one wants more to destroy us than the liberal media and Democrats . Some time soon, there may be no democracy in America and some dictator may rule. Like the Roman Empire, we are failing and young Americans take no pride in the National Anthem, the American Flag, or the Pledge of Allegiance. Who is to blame, Donald Trump? Until he dies, Democrats will try to indict Trump every day, but forgetting about the real problems today in America.

  11. Steve says:

    Stuart: Sheila can speak for herself, but it’s my understanding that these documents were known to be missing based on information provided by the National Archives. Moreover the FBI had been negotiating with Trump’s attorneys for return of any missing files for many months and it was only when they realized that his attorneys were not being honest in representing that certain files had all been returned that they obtained the search warrant. They would have done that with any US citizen who was withholding property that properly belongs to the US government. Wouldn’t you want them to do that?

    Moreover, in retrospect, until Donald Trump came on the scene most Americans were quite satisfied with the way our Democracy was functioning. Yes, lots of give and take, often compromises, but plenty of opportunity to CIVILLY express unhappiness with this, or that. And generally a feeling that elections were run by their fellow citizens as fairly as possible, with plenty of opportunity contest the outcomes if they were unsatisfied, including access to the court system, all the way up to the US Supreme Court. But that’s the end of the line according to our constitution.

    After that, REAL AMERICAN PATRIOTS suck it up and get ready for the next election. And they also stop complaining that their opponents “stole” the election.

    Your comment laments the end of democracy by the Democrats. Last I noticed no one has done more to ensure the end of democracy than Republicans who watched our then President watch an insurrection for over three hours that threatened the very lives of ALL our elected representatives (including an attempt to hang our Vice President) without lifting a finger to tell his supporters to STOP in spite of his own daughter and son (among others) begging him to do so. Interestingly, the minute he told them to stop, they did. What kind of person does this?

  12. sheila says:

    I think Steve has expressed my thoughts perfectly.

  13. Virginia says:

    Perfectly said

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