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Former President Donald Trump pictured at a Republican campaign event on June 25, 2022 in Mendon, Illinois. (Photo by Michael B. Thomas/Getty Images)

Donald Trump and his family were ordered to testify in the New York Attorney Generals investigation into allegations of fraudulent financial conduct by Trump and the Trump Organization. Although Trump and his children will appear for their depositions, dont expect them to say anything. The smart money is that they will assert the Fifth Amendment and refuse to answer any substantive questions.

Taking the Fifth has become a familiar moniker for all types of witnesses gangsters, politicians, even lawyers and judges. Yes, in a civil trial a jury may draw an adverse inference against a party who takes the Fifth. And, combined with the substantive evidence, a verdict canbe reached against that party resulting from the invocation of the privilege. Thus, there is a significant consequence for taking the Fifth in a courtroom setting. And why shouldnt there be?A party should indeed have the benefit of the adverse partys testimony in a civil case, and the party who refuses to testify should pay the price for that refusal, even if the asserting party is resting his silence on the fundamental constitutional right against self-incrimination, which would be fully protected if it were a criminal trial. That makes total sense!

Is there or should there be a difference in a civil trial? Maybe. Typically, when someone takes the Fifth in a proceeding of interest to the public, the man on the street draws an adverse inference against him, i.e., the person who asserts the Fifth is a bad guy. Why else would he take the Fifth? In fact, Donald Trump himself has publicly articulated this commonly-held view. The mob takes the Fifth, hesaid at a campaign rally in September 2017. If youre innocent, why are you taking the Fifth Amendment? Ironically, Trump himself invoked the Fifth Amendment in 1990, during his bitter and public divorce from his late first wife, Ivana Trump. The real estate mogul took the Fifth to avoid answering questions about adultery, invoking the Fifth a total of 97 times in deposition questions that were mostly about other women. And many remember Senator Joe McCarthy pushing the envelope daily during the Army/McCarthy hearings in the early 50s, actually compelling witnesses to publicly take the Fifth in order to incite the public to vilify them.

Now, though, the shoe is on the other foot the Trump family itself is under the gun. Is the ex-president concerned? Probably not. His thinking on issues like this is quite malleable. He will simply say that he and his family have done nothing wrong, and that this is a political witch hunt, like so many other witch hunts against him, and theyll refuse to play ball. Half the public wont believe him, half will. And, as long as he has his half, he wont really care what the rest think.

So, while Trump may be sui generis and thus not a particularly good model for this discussionhis taking the Fifth does squarely raise the issue: Is it fair for the public to conclude that someone is a bad person simply because they take the Fifth Amendment? Is it reasonable or appropriate to make a negative assessment about someone who asserts a core constitutional right that has been a fundamental backstop against government overreaching since the dawn of the Republic? Put differently, does the rights mere assertion imply badness or wrongdoing, however lawful it clearly may be for any individual to take that tack?

According to public opinion polling, invoking the Fifth Amendment is not necessarily an indication that someone is guilty. In a poll conducted after Trumps legal team indicated the possibility of Trump pleading the Fifth in the Russia investigation, 51% of registered voters said that when someone invokes the Fifth Amendment, it does not usually mean they are guilty, while 36% said it usually does. 42% of Democrats said pleading the Fifth usually implies the person is guilty, compared to 31% of Republicans and 33% of independents who said the same.

Heres the irony. Steve Bannon was convicted of contempt of Congress for refusing to even appear when he was subpoenaed by the U.S. House Select Committee investigating the Jan. 6 attack on the Capitol. Had he simply appeared and asserted the Fifth to every question asked or to not produce protected documents, that would have been the end of the matter with no consequence to him other than the view that many would surely have as a result that he had, indeed, criminally participated in the riot. But he wanted to stand tall and not give an impression of weakness by relying on a constitutional right. He even says now, parenthetically,that if he has to go to jail, so be it!

Were not fans of Bannon. But doesnt it say something about how the public views decisions about someone taking the Fifth? In truth, the public has a perfect right to make that decision but is it fair? In a day when so much of our conduct has been criminalized, and with people often taking the Fifth for noble reasons such as protecting their families or themselves from personal embarrassment or their affiliations with ostracized groups is there anything bad about being a communist or belonging to the NAACP in Alabama? any thoughtful criminal lawyer will almost always counsel her client to take five.

By way of example, as a young prosecutor we sought an interview with a witness. His lawyer, a true Brahmin of the bar with total credibility, told us that his client had done nothing wrong and that the interview would accomplish nothing for us. Still, he would decline. He, indeed, said that if I were representing Jesus Christ himself nowadays, I would have him take the Fifth Amendment. Quite a statement!

But isnt there truth to what this lawyer said to us? Most thinking prosecutors today accept that almost every witnesss lawyer is totally justified in insisting on protection for a clients interview by a prosecutor. If so, why should the public draw the seriously negative inference that it typically does when a witness in an investigatory proceeding takes the Fifth? Yes, Bannon had a reason to resist invoking the Fifth he idealized himself in the martyr role as a Trump loyalist intent on fighting back against the House Select Committee. Most witnesses dont have such motivation. They and even more so their lawyers who advise them simply dont want to risk an overzealous prosecutor using an interview or testimony potentially out of context to make a case against them.

The contrast with Miranda during police interrogations is worth noting. Although police are able to get suspects to waive their Miranda rights in most cases, many suspects are advised by their lawyers not to speak to the police. Would anybody criticize the lawyer for giving this advice? Would anybody believe its bad advice, or that the suspects silence means hes guilty?

Most witnesses simply want to protect themselves and their loved ones. Why should they have to pay the price of the publics clamor against them for exercising a constitutional right? Shouldnt the public be better educated about the limited meaning of ones exercise of the constitutional right that should have no adverse consequences outside a courtroom setting? Yes, a hard-to-estimate but extremely significant number of those who take the Fifth probably have done something wrong that requires it. But what about the rest who assert it for reasons having absolutely nothing to do with being guilty?How often in common parlance do people say Ill take the Fifth when they themselves have done nothing wrong, but simply dont want to answer a question that is, for whatever reason, hard to deal with?

Joel Cohen, a former state and federal prosecutor, practices white collar criminal defense law as Senior Counsel at Stroock & Stroock & Lavan. He is the author of Broken Scales: Reflections On Injustice (ABA Publishing, 2017) and an adjunct professor at both Fordham and Cardozo Law Schools.

Bennett Gershman is a Professor of Law at the Elisabeth Haub School of Law at Pace University, a former prosecutor in the Manhattan District Attorneys Office, and a Special Assistant Attorney General in New York States Anti-Corruption Office.

This is an opinion piece. The views expressed in this article are those of just the author.

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If Trump Takes the Fifth, Is He Guilty? - Law & Crime

Charles W. Milliken| The Daily Telegram

Now that Roe has been overturned, once again the right to privacy has come to public attention.These two words open up a whole can of worms that the Supreme Court has wrestled with and come down on all sides of the issue.

Back in 1965, the Supreme Court ruled a Connecticut law banning contraception was constitutionally invalid(Griswold v. Connecticut). Justice Hugo Black wrote in that decision, Privacy is a broad, abstract and ambiguous concept.

The court, in this instance, ruled that privacy involving intimate relationships negated the power of the state to intercede or regulate. From the acorn of that ruling grew the mighty oak of the right of a pregnant woman to terminate her pregnancy. Afterwards came rulings leading up to the right to gay marriage, among other rulings dealing with aspects of sexual morality.

There appears to me to be two large questions in thosewords. What is a right? And what is privacy? Today Ill focus on rights,and next week on privacy.

In the Declaration of Independence, the signers opined that we …are endowed by (our) Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. They stated that rights came from God, not from man. How could there be anything called a right that did not come from God? Otherwise, any right which depends on the sufferance of a government, no matter how constituted, is not a right at all, but a more or less temporary permission to do some thing, or possess some thing, subject to change or withdrawal at any time the governing authorities so wish.

Consider the Bill of Rights. In order to get the Constitution approved, these 10 amendments were passed since the main body of the Constitution didnt deal with rights adequately. Having listed a number of rights, the Ninth Amendment made clear the rights so enumerated were not an exhaustive list. In other words, the writers of these amendments thought there were many rights too numerous to be included, and that everyone, practically, took for granted. The right to privacy, for example,was nowhere listed.

The Fifth Amendment, following on the Declaration, stated that no one could be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation. It is immediately apparent in the text that due process of law and just compensation provide loopholes large enough to drive a truck through.

Consider the right to private property. You may think you own your own home, but you only own it if you comply with myriad government regulations specifying what you can do with that home and, indeed, whether or not you can even live in it. Back in the day, Bonnie and I bought a fixer-upper, but even after having it fixed up, and bought and paid for it, we could not live in it until the local Michigan authorities issued us a Certificate of Occupancy,and they took their sweet time. It was our only home, and we had to pretend not to live in it until the certificate was forthcoming. We are thankful down here in South Carolina such certificates are not necessary.

The courts have held again and again various authorities have the right to intrude on your property rights anytime they feel like it. They can also take it any time they feel like it, provided it is for a public purpose,very elastically defined, and just compensation is whatever the government says it is, not what you think it is. Also, the courts have permitted your property to be taken, without being taken.Say a new environmental regulation destroys half the market value of land you own. Sorry. Thats not a taking.No compensation.

What about the right to life, which IS enumerated? Does the baby in the womb have any such right?

If a constitutionally enumerated right to property can be so thoroughly ignored, what about unenumerated rights? Privacy, unenumerated, Ill consider next.

Charles Milliken is a professor emeritus after 22 years of teaching economics and related subjects at Siena Heights University. He can be reached at milliken.charles@gmail.com.

Excerpt from:
Charles Milliken: Defining what exactly is a 'right' - Monroe Evening News

In Dobbs v. Jackson Womens Health Organization, the Supreme Court terminated the national right to abortion. Writing for a 5-4 majority, Justice Samuel Alito held that the Constitutions Due Process Clause provides no protection for a right that is not deeply rooted in this Nations history and tradition. This means, according to the majority, that it is constitutional to bar the termination of a pregnancy as long as a state legislature rationally thought it would serve legitimate interests.

Nowhere in any of the five opinions did any justice mention the possibility that Mississippis law might violate another constitutional provision and in the process create a constitutional right to compensation for motherhood.

In 1897, the Supreme Court held for the first time that a provision in the Bill of Rights was incorporated as a right by the Fourteenth Amendment. In Chicago, Burlington and Quincy Railroad Company v. Chicago, the railway challenged a jury award of $1 compensation for access to its property for a public street. The court held that even though an Illinois statute had authorized the taking and the proper procedure had been followed the states decision violated the Due Process Clause. This is because the de minimis award violated the Fifth Amendment, which provides that private property shall not be taken for public use, without just compensation.

The Just Compensation Clause requires government to pay the fair market value of private property it takes for a public use. The Supreme Court does not require the government to physically take property for there to be a taking; what matters is whether the rights of the owner are impaired by the governments use. As the Supreme Court held in Armstrong v. United States, the Just Compensation Clause was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.

Applying long-established Supreme Court precedents, requiring a pregnant women to give birth is a taking of her property during the period between the prohibition of elective abortion and childbirth. Undoubtedly, she owns her own body. As the dissent pointed out, There are few greater incursions on a body that forcing a woman to complete a pregnancy and give birth. They include physiological changes, greater need for medical treatment and increased risk. As the dissent noted, an American woman is 14 times more likely to die by carrying a pregnancy to term than by having an abortion. She must also comply with state laws that regulate her behavior during pregnancy. In many states, it is illegal for her to consume alcoholic beverages, and in five she can be involuntarily committed for doing so. Pregnancy also imposes additional costs for changes in diet and maternity clothes. Women will need time off from work for medical appointments and may have to stop working altogether. Finally, there is the cost of giving birth.

The Supreme Courts definition of taking also requires that it be done for a public purpose. In Dobbs, the court had no difficulty in determining that the Mississippi law was adopted for the public purpose of protecting prenatal life. And while the newly-born citizens are private persons, the fact that individuals benefit from the states ban on abortion does not mean there is no constitutional taking. As the court held in 2005 in Kelo v. City of New London, the governments pursuit of a public purpose will often benefit individual private parties. In effect, state abortion bans impose the costs of bearing children on all mothers, who are denied the right to control the use of their wombs.

This is why women required to carry their pregnancy to term have a right to compensation for their service to the state. This applies to women in every state, since every state imposes some limit on the duration in which elective abortions are permitted.

What expenses must be compensated? At a minimum, out-of-pocket medical expenses due to pregnancy. While many women have insurance that covers some of these costs, they should be fully reimbursed for all mothers. That might best be accomplished by guaranteeing that pregnant women will have comprehensive health insurance until they give birth. Other out-of-pocket costs for clothing and food should also be compensated, either through a monthly grant or a reimbursement process. Lost income will vary based on each womans economic situation at the time of pregnancy and would need to be separately evaluated based on the specific circumstances of each mother.

Opponents of Dobbs have directed most of their ire at the five justices who signed the majority opinion. But it is unrealistic to expect the court will return to Roe v. Wade in the foreseeable future. Litigation to establish constitutional rights to compensation for the expenses of pregnancy should be pursued.

Rozinski is an associate professor of political science at Touro University.

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Roe, Dobbs and women's rights New York Daily News - New York Daily News

The Fifth Amendment Bills of the 1999 Constitution, from Alteration One to Alteration Sixty-Six, have been approved by the Anambra State House of Assembly for the benefit of the people.

The Senate and House of Representatives, respectively, amended sixty-six sections of the 1999 Constitution in March of this year. The amended sections were sent to all state Houses of Assembly in Nigeria for consideration as it requires two-thirds of the states in Nigeria to pass it before it becomes law, according to the majority leader, Dr. Nnamdi Okafor.

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Among the changes were those that supported the final autonomy of the state legislature, judiciary, local government, and independent candidacy.

Speaker of the House, Right Honourable Uche Okafor read out the sixty-six alterations to the House, while the lawmakers supported it through a voice.

In his reaction, the member representing Nnewi North Constituency, Honourable Nonso Smart-Okafor, commended the House for concurring with the entire alterations as sent to them by the National Assembly , stressing that the alterations were made to capture the present realities of the country and meet the yearnings and aspirations of the people.

Honourable Uzoma Eli, member representing Onitsha South One Constituency, described it as a step in the right direction, adding that the changes will ensure that Nigeria has a progressive constitution that can guarantee unprecedented development of the country.

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Anambra House of Assembly Passes 5th Amendment Bills - TVC News

Grand juries play a major role in the U.S. criminal justice system. And theyre very much in the news these days.

A grand jury in Fulton County, Georgia, is looking into former President Donald Trumps efforts to overturn the 2020 presidential election results in that state. Among the latest witnesses to give testimony to the grand jury was Georgia Gov. Brian Kemp.

In Washington, D.C., the U.S. Justice Department is in the middle of an investigation into efforts to overturn the 2020 election, and it is questioning witnesses before a grand jury as well. Most recently, two top aides to former Vice President Mike Pence were questioned in that probe.

A grand jury does not mean that the investigation will lead to any formal criminal charges, which are known as indictments. There was a grand jury that issued subpoenas during the investigation into Hillary Clintons email server, for example, but no one was charged with any crimes.

In order to understand grand juries and their work, I offer the following explanation of how federal and state grand juries are used in the U.S.

The Fifth Amendment to the U.S. Constitution provides the legal basis for grand juries. In federal criminal cases, federal grand juries are made up of 16 to 23 members. They decide whether to indict someone who is being investigated, and at least 12 grand jurors need to agree to issue an indictment.

In addition to considering whether individuals may have committed a crime, a grand jury can also be used by a prosecutor as an investigative tool to compel witnesses to testify or turn over documents. Reports indicate that Special Counsel Robert Mueller used a grand jury for the latter when he investigated whether there was collusion between former President Donald Trumps election campaign and Russia to influence the 2016 election.

Grand jurors are usually chosen from the same jury pool as trial jurors. For a federal grand jury, all U.S. citizens over the age of 18 living in the federal district courts geographic jurisdiction are in the pool.

Court clerks first identify members of the grand jury pool from public records, including records of licensed drivers and registered voters.

Next, prospective grand jurors are screened, usually through questionnaires.

To be a member of a federal grand jury, a person has to be adequately proficient in English, have no disqualifying mental or physical condition, not be currently subject to felony charges punishable by imprisonment for more than one year and never have been convicted of a felony (unless civil rights have been legally restored). The court then randomly chooses candidates for the grand jury from this pool.

In all felony cases, there must be a probable cause determination that a crime has been committed in order for a case to move forward to a trial or a plea. Probable cause means that there must be some evidence of each element of the offense.

In the federal system, a grand jury is the body that makes the probable cause determination. In many states, like Missouri, the probable cause determination can be made either by a grand jury or at a preliminary hearing before a judge.

When there is an option for either a grand jury or preliminary hearing to determine probable cause, the prosecutor decides which one to use. For example, in the shooting death of Michael Brown by police officer Darren Wilson in 2014, the St. Louis County prosecuting attorney brought the evidence to a grand jury rather than choosing to present evidence to a judge through a preliminary hearing. In serious cases like murder, most prosecutors use the grand jury because it is usually quicker than a preliminary hearing.

Most people whose cases go to the grand jury have already been arrested. These include all of the cases in which a person is arrested while committing a crime or shortly after the crime has been committed.

In some cases, like Muellers Russia investigation, prosecutors do not have all the evidence they need to make a good case. In these investigations, a grand jury is used to help with the investigation. Once the grand jury is impaneled, the prosecutor has the ability to subpoena records and witnesses.

Subpoena power means the prosecutor can compel witnesses to turn over documents and to testify. If the prosecutor obtains sufficient evidence of a crime, the same grand jury has the power to indict whomever it believes has committed a crime.

The work of a grand jury is required by law to be done in secret, so the public has no right to know who is subpoenaed or what documents the grand jury is reviewing. Even though the grand jury work is secret, federal rules and a majority of states permit grand jury witnesses to discuss what occurred when they testified.

In some high-profile cases, witnesses subpoenaed to appear before the grand jury will talk to the press if they think it will be helpful to them. For example, when former President Bill Clinton testified before a grand jury during the investigation into Whitewater real estate investment and the affair with Monica Lewinsky, he went on national television and announced that he had testified.

The secrecy of a grand jury presents some dangers. The defendant does not know the evidence being considered, does not have a right to be present, and cannot question the evidence early in the criminal justice process.

As a result of the secrecy, the grand jury can also end up being a tool of the prosecution, and the prosecutor can choose to withhold evidence that is favorable to the accused. That is why a former chief judge of the New York Court of Appeals, the highest court in New York, famously said that a prosecutor could get a grand jury to indict a ham sandwich.

These types of dangers are always present during any grand jury, and getting a grand jury to issue an indictment may be easy. But in high-profile cases, like the Russia connection to the Trump presidency and possibly the current investigation into Trumps efforts to overturn the election results in Georgia, proving wrongdoing beyond a reasonable doubt through a trial or a negotiated guilty plea usually proves much more difficult.

This is an updated version of a story originally published on Aug. 7, 2017.

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How do grand juries work? Their major role in criminal justice, and why prosecutors are using them to investigate efforts to overturn the 2020...