Posted on by rjonakait

The Fifth Amendment and a Pardon

Dr. Anthony Fauci has been cited for contempt of Congress. He refused to answer questions at a hearing chaired by Senator Rand Paul, who is of the school of protesting too much (No, no, no. I am not obsessed with Fauci; in spite of my many statements that I want him behind bars, I am not seeking to put Fauci in jail, etc., etc., etc.). In the hearing, demon/saint Fauci said over a hundred times that, relying on the Fifth Amendment to the United States Constitution, he would not respond to questions from the Senators. Paul responded that the Fifth Amendment did not relieve Fauci from answering because Fauci had received a pardon from President Joe Biden covering the topics addressed in the hearing. The contempt citation followed.

The Fifth Amendment states that “no person . . . shall be compelled in any criminal case to be a witness against himself.” This provision is often referred to as the protection against self-incrimination. It has been interpreted to mean that the government cannot compel testimony that could be used in a criminal prosecution against the testifier. (The pleading of the Fifth is not an admission of guilt. A person can be charged and prosecuted without being guilty.) However, if there is no chance that the testimony can be used criminally against a person, the Fifth Amendment does not prevent compelled answers. There is the rub. Paul maintains that because of Fauci’s pardon, the devil/angel doctor’s answers cannot be used in a criminal proceeding against him because he cannot be prosecuted for the conduct prompting the committee’s questions.

Rand’s position contradicts the position of Trump, who has claimed that Biden’s pardon was not legal because it was signed by an autopen. However, given that the pardon is valid, its reach is limited. It cannot bar all possible prosecutions of Fauci. Often a person can be prosecuted for the same conduct in more than one jurisdiction. The crime can be simultaneously a federal crime and a state crime. It can simultaneously be a crime in more than one state. However, in our federal system, each jurisdiction has control over its own criminal proceedings. States cannot prevent federal prosecutions for the same conduct. One state cannot bar another state from prosecuting for the same conduct. And the federal government cannot prohibit state prosecutions. Biden’s pardon only prevents federal prosecutions. It does not bar any state from prosecuting. Fauci’s taking his Fifth Amendment right against self-incrimination came from a valid concern about state prosecutions.

The possibility of state prosecutions of Fauci are quite real. Shortly after the hearing presided over by Senator Paul, Attorneys General James Uthmeier (Florida), John McCuskey (West Virginia) Liz Murrill (Louisiana), issued a subpoena to Dr. Fauci. They claim to be investigating whether he “profited” from the recommendations he gave during the Covid pandemic. If in their, I am sure, entirely neutral eyes he has done such a thing, state prosecutions can, and probably will, follow.

The Supreme Court has not discussed the interplay between presidential pardons and the right against self-incrimination, but it has addressed a related situation. Prosecutors and other government officials often desire the testimony of people who may both incriminate themselves and others. The government may be willing to give up the prosecution of one person in order to get a conviction of another. Think underlings in a criminal conspiracy or the getaway driver in a murderous robbery. In these situations, immunity can be given to the sought-after testifier.

That person may be given transactional immunity, which prevents the prosecution for any “transaction” testified about. If the testimony is about a murder, the testifier given immunity cannot be prosecuted for that murder. Because the person can’t be prosecuted, he can’t incriminate himself, and the jurisdiction can compel his testimony. Except, however, the multi-jurisdiction problem arises. A jurisdiction granting transactional immunity can bind itself not to prosecute, but it can’t bind other jurisdictions. If New York grants someone transactional immunity, the federal government or other states can still prosecute if the conduct violated their criminal laws.

The United States Supreme Court has addressed this multi-jurisdiction problem. It determined that a grant of immunity by one jurisdiction gives “use and derivative use” immunity in the other jurisdictions. Those other places can still prosecute, but they may not use the immunized testimony or anything derived from it in their prosecutions. Thus, the Court concluded, the right against self-incrimination is preserved because the compelled testimony or evidence garnered from it cannot be used in a criminal proceeding against the testifier.

The Court ruling on the multi-jurisdictional effect of immunity applies not just to prosecutors but to any government entity seeking to compel testimony. If a state commission or a legislative committee grants immunity to compel testimony, that grant acts as use and derivative use immunity in other jurisdictions.

A pardon is not the same as a grant of immunity. The purpose of an immunity grant is to compel testimony. The purpose of a pardon is not to obtain testimony but to relieve a person of consequences of a criminal conviction. It is not clear what the interplay is between pardons and the right against self-incrimination, and the Supreme Court has not addressed that situation. We don’t know if somehow a pardon in one jurisdiction results in use and derivate use immunity everywhere else. Thus, Fauci could not know whether his testimony could be used against him in a criminal proceeding.

Of course, if this drama really was about getting Fauci’s testimony to learn more about the origins of Covid-19 and not simply an effort to jail him, Rand Paul would have had a simple solution. The committee could have given Fauci immunity, which does not protect against perjury in the compelled answers. Why didn’t Paul do that?

There is another potential fallout from the Paul/Fauci stageplay. (Who is the devil and who is the saint in this drama?) If it is decided that because of the pardon, Fauci did not have a Fifth Amendment protection at the hearing, then the people Trump has pardoned also would not have a right against self-incrimination at a congressional hearing. If the Democrats control a House of Congress after the coming election, will they subpoena pardoned January 6 rioters to ask about the origins of the insurrection? If the goal is not really to learn more about those origins but to put the insurrectionists back in jail, they will not have to give immunity to those whom Trump has pardoned.

Posted on by rjonakait

The Republican Pecking Order

          I have no insight into whether Trump will run for president in 2024, but I am confident that if he does not, the announcement will come as late as possible. Trump wants to be a center of attention and that ends when we know that he is not a candidate. This, of course, presents a problem for other Republicans with dreams of the White House. They will have to gear up campaigns before Trump makes clear whether he is a candidate. They will want Trump’s support if he does not run, and it will be interesting to see how this affects their campaigns. They have to proceed in ways that will not offend the ever-mercurial Donald while he dithers. And, of course, if Trump does run, the others, who may already be entered in primaries, must decide whether they will withdraw.

          From the list now of apparent or potential candidates, Ron DeSantis will have the toughest choice about whether to stay in the race. He could wait until 2028 to run, but it could be a liability if he continues to be governor of Florida for those four years. That is because governors, surprise, surprise, must govern. Of course, DeSantis may continue to be identified with policies of anti-gay and voter-fraud measures, but a governor must do more than this kind of pandering. There will be roads to be maintained, schools to be funded, taxes to be levied and collected. In all likelihood, there will be storms and floods and blackouts. There will be illegal immigrants and corruption. There will be crimes and mass shootings. There will be development decisions and red tide. States can’t print money and have to balance their budgets. That almost always requires deals, negotiations, and compromises….you know, governing.

          A governor has to make decisions, and no matter how wise those decisions, not all will agree with them. A danger for a governor is that over time, those who are made unhappy in one area will coalesce with those made unhappy by choices elsewhere. In the four years after 2024, there is a good chance that the unfavorable ratings of DeSantis will increase and weaken his presidential prospects. Just remember my ex-governor, Andrew Cuomo. Three years ago, he looked as if he might be a leading presidential candidate, even though there was much under-the-radar grumbling in the state about him. When one sort of complaint about him got traction, many areas of Cuomo discontent coalesced, and he is gone. DeSantis, if he is as shrewd as he appears, should know of that possibility. Holding off his presidential ambitions beyond 2024 is a big risk for Ron.

          The many Senate Republican wannabes may not wish to wait four more years after 2024 for their presidential chance either, but they don’t face the potential harm that the Florida governor does from the delay. Senate Republicans don’t believe in governing other than passing tax cuts skewed towards the rich, and that has already been done. The goal now is not to improve anything but to prevent legislation, a relatively easy task. Passing laws always involves compromise and for Republicans that would mean working with Democrats, and working with Democrats appears to be a death knell for any Republican’s presidential hopes. Furthermore, good legislation requires study, knowledge, and mastery of detail, and who wants to bother with that?

          The role of a Republican senator these days is not to take a part in governing; instead, the role is merely self-aggrandizing grandstanding. More of that from 2024 to 2028 is unlikely to harm the prospects of Cotton, Cruz, Hawley, Paul and the others, and it might even benefit them. Thus, if Trump runs, the Senate Republicans are not likely to challenge him but will get out of the race they will have already entered.

          However, if Trump runs, I hope that DeSantis stays in. Good political theater could result. The Senatorial and other presidential pretenders might normally proclaim neutrality between the candidates–let the voters decide. But we know that the Trumpian stance is that if you are not with me, you are against me. Cruz, Hawley, Cotton, Paul and others will support Trump because they will want his support, but they will do it with some trepidation. What if DeSantis wins? They might mouth kudos for Trump, but can they attack DeSantis? No one wants to offend someone who might be the winner. This road is also tricky because while other wannabes may pledge loyalty to the Republican party, they will not want a DeSantis president. The Twenty-Second Amendment limits Trump to only one more term. DeSantis could serve eight years as president. Waiting four more years for their presidential shot is one thing for those in waiting; eight is another.

          I also want DeSantis in primaries against Donald because it will be interesting to see Trump attack DeSantis. Donald regularly pulls out the RINO label against Republicans who don’t sufficiently kowtow to him, but it will be hard to stick that epithet on Ron who might be less of a RINO than Trump himself. Furthermore, attacks on DeSantis could produce dangerous Florida sinkholes. The Republican path to a general election victory in 2024 surely requires a Florida win. Trump has not been a politician of nuance, but that may be required to defeat DeSantis for the nomination and still carry the rising-water-and-disappearing-coastline state in November.

          I look forward to two other political possibilities if DeSantis or someone else provides a strong primary challenge to Trump. Republicans have been making it harder to vote. The goal, of course, is to disproportionately burden Democratic voters. That might happen in the general elections, but the recent Texas primaries also show that the “anti-fraud” measure can affect Republicans, too. A higher percentage of absentee ballots were disqualified in Texas than in previous years after stricter identification requirements were enacted and applied, and many of the ballots tossed aside came from counties that overwhelmingly supported Trump. In the general election, more Democratic votes may be suppressed than Republican ones, as intended, but Republican votes, as Texas shows, will be lost in Republican primaries. If primary elections are close, then it might be crucial whether the lost Republican votes helps one candidate more than another. Will any Republican candidate who loses a close primary where ballots have been disqualified complain about the voting laws?

          But the major reason I want Trump in primaries with a strong candidate is that we now know that Trump cannot lose a general election; it can only be stolen from him. Are you going to be surprised if he reacts similarly to a primary loss? What will be the reaction from all those Republicans who now do not denounce the Stop the Steal movement if Trump claims that a primary is fraudulent? Or if DeSantis or another Republican candidate made such a claim after a close primary loss? Let the elephant dung fly!