I guess you have to be a \u201ccertain age\u201d to remember those old movies. I certainly don\u2019t remember them from the theatre, but on Saturday afternoons or late in the night, they were on TV. They were \u201cfilm noire\u201d and some of the favorites of my parents\u2019 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 \u201cfemme fatale\u201d on his arm.<\/p>\n\n\n\n
The great players of Mom and Dad\u2019s 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 \u201chappy ending\u201d.<\/p>\n\n\n\n
And no one ever got to \u201ctake the Fifth\u201d. They were shot, or tricked, or a confession was \u201csweated out\u201d of them under the swinging light hanging from a single cord. Getting justice wasn\u2019t usually the issue, revenge was. And the moral of the story \u2013 there might not be any morals in the world at all.<\/p>\n\n\n\n
So what is the Fifth? <\/p>\n\n\n\n
The Fifth Amendment to the United States Constitution outlines the rights of someone accused of a crime. The portion we\u2019re concerned with is:<\/p>\n\n\n\n
\u201c No person\u2026shall be compelled in any criminal case to be a witness against himself.\u201d<\/em><\/p>\n\n\n\n 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\u2019s 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 \u2013 the famous Miranda Rights from the Supreme Court case of the same name. \u201cYou have the right to remain silent, anything you say can and will be used against you in a Court of Law.\u201d<\/p>\n\n\n\n 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 \u201cconfess\u201d to a crime. So it shouldn\u2019t 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.<\/p>\n\n\n\n \u201cTaking the Fifth\u201d 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\u2019s a right every American has, guilty, innocent, or somewhere in between (like the Film Noire anti-heroes). <\/p>\n\n\n\n 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 \u201cleaders\u201d who developed the entire strategy of trying to undermine and overturn the 2020 election results may have criminal exposure. <\/p>\n\n\n\n When former Assistant Attorney General Jeffrey Clark was called to testify in front of the January 6th Committee, his first defense of \u201cexecutive privilege\u201d 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. <\/p>\n\n\n\n Clark, and the \u201clegal mind” behind \u201cStop the Steal\u2019, 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 \u201cTake the Fifth\u201d. And they have every right to do so.<\/p>\n\n\n\n So why didn\u2019t they do that in the first place? Why start on a shaky legal foundation, the \u201cprivilege\u201d argument, when they had firm footing in the Fifth Amendment? The answer lives at Mara Lago in Florida. While legally \u201ctaking the Fifth\u201d doesn\u2019t 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 \u201cStop the Steal\u201d was illegal.<\/p>\n\n\n\n And this isn\u2019t just a legal question, it\u2019s 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.<\/p>\n\n\n\n However, unlike the shaky \u201cprivilege\u201d 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 \u201ccure\u201d 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.<\/p>\n\n\n\n Immunity can be transactional, question by question, or it can be \u201cblanket\u201d over an entire testimony. There are often questions a witness can answer that do not incriminate, and those don\u2019t need to be \u201cimmunized\u201d. That high priced lawyer sitting beside the witness has \u201cjust one job\u201d: to make sure that if an answer will be incriminating, the witness either \u201cTakes the Fifth\u201d or gets immunity for the answer. <\/p>\n\n\n\n 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\u2019s problem the Committee members will need to solve.<\/p>\n\n\n\n Like those old films, there probably won\u2019t be a \u201chero\u201d on the witness stand (and no femme fatale). No matter what the Committee reveals, there\u2019s not likely to be a happy ending either. But, unlike Film Noire, the Committee may get justice.<\/p>\n","protected":false},"excerpt":{"rendered":"Executive Privilege<\/h3>\n\n\n\n
Money Talks<\/h3>\n\n\n\n
Immunity<\/h3>\n\n\n\n