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

Snippets

Distinguished lawyers state that no attorney would allow Donald Trump to testify in his criminal trials. That is misleading. A criminal defendant has the constitutional right to testify at his trial, and the law is clear that the attorney does not control this decision. The accused decides. The attorney may advise against such testimony, and the defendant usually follows that advice, but the defendant has the ultimate authority over whether he testifies or not. Would you be surprised, however, if Trump did not listen to his lawyers?

Does Trump fully know what he is charged with in the last indictment? That charging document is forty-five pages long. It is about him, so there is a chance he read it, but not a good one.

“A President’s hardest task is not to do what is right, but to know what is right.” Lyndon B. Johnson.

“The American Presidency, it occurs to us, is merely a way station en route to the blessed condition of being an ex-President.” John Updike.

Several women are running for president. With our concern over inflation and deficits, we should elect a female. We could pay 70% of what we pay a man for  being president.

“I’d like to get to the point where I can be just as mediocre as a man.” Juanita Kreps.

“He told me that he was a self-made man. Later I discovered that he would have been wise to get some help.” Joan Rivers.

When a woman refuses to respond to a man’s advances, he is not disconcerted; he is merely astonished that she could be so blind to her own feelings. With a nod to Helen Rowland.

“In passing, also, I would like to say that the first time Adam had a chance he laid the blame on a woman.” Nancy Astor.

“Whatever women do they must do twice as well as men to be thought half as good. Luckily, that is not difficult.” Charlotte Witten.

“It’s sexy to be competent.” Letty Cottin Pogrebin.

“I have yet to hear a man ask for advice on how to combine marriage and a career.” Gloria Steinem.

“My life is not up for criticism, just my work.” Cher.

A wise person said, “Women who think they are the equal of men lack ambition.”

Behind every successful man stands an amazed woman.

Posted on by rjonakait

Bill Cosby is Free. So is Oliver North.

The Pennsylvania Supreme Court overturned Bill Cosby’s conviction for sexual assault. After three years in prison, he was released.

A fundamental right, the protection against self-incrimination, was at the heart of the court’s decision. Popular culture has made us aware of this constitutional provision. The Miranda warnings are based on it. From an earlier era, many remember witnesses at congressional hearings droning that they would not answer questions because of the possibility of self-incrimination. Fictional and real trials teach that criminal defendants cannot be forced to take the stand in their criminal trials because of their rights against self-incrimination.

 However, if witnesses are given immunity against prosecution, they can be forced to testify in criminal trials even if their testimony implicates them in crimes. This is because immunity is a governmental promise that the witness will not be prosecuted or that their forced testimony will not be used against them in a criminal prosecution. If this promise is followed, the testimony cannot legally incriminate the witness, and the prosecution can force the witness to testify.

Civil cases are different. They are not prosecutions, and the parties can be forced to testify. The usual practice is for the defendant in a civil case to take the deposition of the plaintiff and often to call the plaintiff to testify at trial. The plaintiff has the same right to have the defendant testify at a deposition or trial. Even though private parties are the litigants, such testimony is forced by the government because it is the court that orders the testimony. The required testimony can be enforced by contempt sanctions carried out by government officials.

Normally a civil proceeding does not raise self-incrimination problems because the civil case raises no criminal issues. However, a problem arises when a civil case potentially intertwines with a criminal prosecution. That was the Bill Cosby situation. He was sued civilly for a sexual assault that could lead to criminal charges. Under accepted self-incrimination law, he could be forced to testify in the civil case, but he had the right to refuse to answer any question that might incriminate him in a criminal prosecution. The state prosecutor who had jurisdiction over the potential criminal matter stated that he would not prosecute Cosby for the sexual assault. With that promise of immunity, Cosby did not have a self-incrimination right to assert in the criminal case, and he testified.

Years later, a new prosecutor, who, if memory serves, campaigned promising a Cosby prosecution, disregarded the former prosecutor’s decision and criminally charged Cosby with the sexual assault Moreover, he used Cosby’s damaging statements from the civil proceeding in the criminal trial. At the time, I and many others thought that this was a due process violation, and now the Pennsylvania Supreme Court has agreed.

Cosby’s release,of course, brought reactions about sexual violence, black lives matter, and unjust convictions (so far I have not seen anyone trying to tie this outcome into defunding the police).  His release for me, however, dredged up memories of Oliver North, a frequent commentator on conservative news outlets. North was a key figure in the Iran-Contra affair of the 1980s. This is not the time to rehash those scandals, but I urge all to read about it. It was a dangerous time for the country as members of the Reagan administration worked to subvert the Constitution by secretly selling arms to Iran, our supposed enemy, and using the proceeds to fund groups fighting in Nicaragua, violating a congressional mandate. In the Iran-Contra aftermath, many high officials were indicted, including North, who was convicted of several felonies. He appealed, and something I have not heard North mention on his many television appearances on Fox and elsewhere, his appeal was supported by the ACLU.

Before North’s trial, he was called to testify by a joint congressional committee in a televised hearing. In order to compel his testimony, the Committee gave him immunity. Congress, the legislative branch of government, does not have the authority to prevent prosecutions, which are done by the executive branch. Instead, as Supreme Court cases had made clear, a grant of congressional immunity, while not preventing a prosecution, does prevent a prosecutor from using the compelled testimony or anything derived from that testimony. However, a prosecution that did not rely on the immunized testimony was permissible. Hoping to bring a criminal prosecution against North and to satisfy the self-incrimination clause, the prosecutors in the North case insulated themselves from North’s compelled testimony. They did not watch North’s congressional testimony, did not read a transcript, and refrained from being exposed to the news outlets reporting it. They segregated the evidence they had gathered before the testimony to show that this evidence was not influenced by the congressional hearing.

None of the congressional testimony was used at trial and nothing at the trial revealed that the prosecutors were in any way influenced by it. Even so, the Fourth Circuit Court of Appeals, then known as one of the most conservative federal courts, reversed the conviction. The court concluded that witnesses at the trial may somehow have been affected by the televised public proceedings, even though there was not a scintilla of proof of such influence. This court standard, new at the time and (I don’t think) ever applied again, meant that there was no way for the prosecution to establish that North’s immunity would not be violated in a new trial. All charges against him were dismissed. The other Iran-Contra participants who had also been convicted but did not have their convictions reversed, were later pardoned by President George H.W. Bush.

Oliver North did not spend one day in prison.