Film Noire
I guess you have to be a “certain age” to remember those old movies. I certainly don’t remember them from the theatre, but on Saturday afternoons or late in the night, they were on TV. They were “film noire” and some of the favorites of my parents’ generation. But for me they were grainy, black and white cops and robbers films, with an anti-hero as a criminal or a shady detective, who always had a “femme fatale” on his arm.
The great players of Mom and Dad’s generation were all there: Humphrey Bogart and Lauren Becall, Burt Lancaster and Ava Gardner, Robert Mitchum and Jane Greer, William Holden and Gloria Swanson, Orson Welles and Joan Crawford. They had offices in seedy buildings, chain smoked and talked out of the side of their mouths, and double crossed each other time and time again. The cops were often as bad as the criminals, and there was no such thing as a “happy ending”.
And no one ever got to “take the Fifth”. They were shot, or tricked, or a confession was “sweated out” of them under the swinging light hanging from a single cord. Getting justice wasn’t usually the issue, revenge was. And the moral of the story – there might not be any morals in the world at all.
US Constitution
So what is the Fifth?
The Fifth Amendment to the United States Constitution outlines the rights of someone accused of a crime. The portion we’re concerned with is:
“ No person…shall be compelled in any criminal case to be a witness against himself.”
In our criminal process, no one can be required to answer questions or make statements that could incriminate themselves, that is, help prove their guilt. It’s such an important part of our Constitutional process that, since 1966, each time law enforcement questions a suspect, the officer is required to notify the suspect that they do not have to answer questions – the famous Miranda Rights from the Supreme Court case of the same name. “You have the right to remain silent, anything you say can and will be used against you in a Court of Law.”
And the Fifth Amendment right crosses over to almost every government interaction with the public. A Congressional Committee can require a witness to answer questions. But they cannot require that the witness “confess” to a crime. So it shouldn’t be a surprise that some former Trump officials are seeking the protection of the Fifth Amendment. In fact, the surprise is that they took so long to do so.
“Taking the Fifth” is NOT a confession. In fact, juries are instructed that they cannot infer guilt because someone refused to testify, invoking their Fifth Amendment right. It’s a right every American has, guilty, innocent, or somewhere in between (like the Film Noire anti-heroes).
Executive Privilege
There are several laws they may have been violated by the Trump Administration and their supporters in the two months after the 2020 election. Certainly those who led the crowds to attack the Capitol on January 6th are likely candidates for criminal charges. And the “leaders” who developed the entire strategy of trying to undermine and overturn the 2020 election results may have criminal exposure.
When former Assistant Attorney General Jeffrey Clark was called to testify in front of the January 6th Committee, his first defense of “executive privilege” was unlikely. That law is clear: executive privilege, the idea that a President ought to be able to get confidential advice, only applies to the current executive.
Clark, and the “legal mind” behind “Stop the Steal’, attorney John Eastman, now realize that they may have broken the law. So their best bet, and most effective way to avoid questions, is to “Take the Fifth”. And they have every right to do so.
Money Talks
So why didn’t they do that in the first place? Why start on a shaky legal foundation, the “privilege” argument, when they had firm footing in the Fifth Amendment? The answer lives at Mara Lago in Florida. While legally “taking the Fifth” doesn’t imply guilt, in the mind of the general public, someone who does must be hiding something. Invoking the Fifth Amendment raises the question of criminality, that somewhere in their actions laws were broken. And, of course, the man in Mara Lago cannot stand the concept that something in “Stop the Steal” was illegal.
And this isn’t just a legal question, it’s a financial one as well. Those lawyers sitting beside the witness get paid, probably $500 an hour. Someone has to pick up the tab. All of these potential witnesses needr help for legal fees, and the obvious answer is the hundreds of millions raised by the Trump Campaign of 2020 and 2024. Implying crime is not a way to reach those funds.
Immunity
However, unlike the shaky “privilege” argument, the Fifth Amendment protection does have one vulnerability. The Fifth only applies if there is a risk of criminal action. So the January 6th Committee has the ultimate “cure” to the Fifth. Like every Congressional Committee, they have the power to grant immunity from prosecution. Once immunity is granted, then the Fifth Amendment no longer applies.
Immunity can be transactional, question by question, or it can be “blanket” over an entire testimony. There are often questions a witness can answer that do not incriminate, and those don’t need to be “immunized”. That high priced lawyer sitting beside the witness has “just one job”: to make sure that if an answer will be incriminating, the witness either “Takes the Fifth” or gets immunity for the answer.
The question for the Committee: if everyone gets immunity, the Committee gets answers but no justice; no one to take responsibility for what happened in those two fateful months. But if no one gets immunity, there will be a lot of information that never comes out. And that’s problem the Committee members will need to solve.
Like those old films, there probably won’t be a “hero” on the witness stand (and no femme fatale). No matter what the Committee reveals, there’s not likely to be a happy ending either. But, unlike Film Noire, the Committee may get justice.
