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Annenberg Classroom – Fifth Amendment

Fifth Amendment – The Text No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Fifth Amendment – The Meaning Grand Jury Protection: The Fifth Amendment requirement that serious federal criminal charges be started by a grand jury (a group of citizens who hear evidence from a prosecutor about potential crimes) is rooted in English common law. Its basic purpose is to provide a fair method for beginning criminal proceedings against those accused of committing crimes. Grand jury charges can be issued against anyone except members of the military, who are instead subject to courts-martial in the military justice system.

To avoid giving government unchecked powers, grand jurors are selected from the general population and their work, conducted in secret, is not hampered by rigid rules about the type of evidence that can be heard. In fact, grand jurors can act on their own knowledge and are free to start criminal proceedings on any information that they think relevant.

It is these broad powers that have led some critics to charge that grand juries are little more than puppets of prosecutors. Grand juries also serve an investigative role-because grand juries can compel witnesses to testify in the absence of their lawyers.

A significant number of states do not use grand juries, instead they begin criminal proceedings using informations or indictments. The right to a grand jury is one of only a few protections in the Bill of Rights that has not been applied to the states by the Fourteenth Amendment.

Protection against Double Jeopardy: This portion of the Fifth Amendment protects individuals from being twice put in jeopardy of life or limbthat is, in danger of being punished more than once for the same criminal act. The U.S. Supreme Court has interpreted the double jeopardy clause to protect against a second prosecution for the same offense after acquittal or conviction and against multiple punishments for the same crime. Like other provisions in the Bill of Rights that affect criminal prosecutions, the double jeopardy clause is rooted in the idea that the government should not have unlimited power to prosecute and punish criminal suspects. Rather, the government gets only one chance to make its case.

Right against Self-Incrimination: This provision of the Fifth Amendment is probably the best-known of all constitutional rights, as it appears frequently on television and in movieswhether in dramatic courtroom scenes (I take the Fifth!) or before the police question someone in their custody (You have the right to remain silent. Anything you do say can be used against you in a court of law.). The right protects a person from being forced to reveal to the police, prosecutor, judge, or jury any information that might subject him or her to criminal prosecution. Even if a person is guilty of a crime, the Fifth Amendment demands that the prosecutors come up with other evidence to prove their case. If police violate the Fifth Amendment by forcing a suspect to confess, a court may suppress the confession, that is, prohibit it from being used as evidence at trial.

The right to remain silent also means that a defendant has the right not to take the witness stand at all during his or her trial, and that the prosecutor cannot point to the defendants silence as evidence of guilt. There are, however, limitations on the right against self-incrimination. For example, it applies only to testimonial acts, such as speaking, nodding, or writing. Other personal information that might be incriminating, like blood or hair samples, DNA or fingerprints, may be used as evidence. Similarly, incriminating statements that an individual makes voluntarilysuch as when a suspect confesses to a friend or writes in a personal diaryare not protected.

Right to Due Process: The right to due process of law has been recognized since 1215, when the Magna Carta (the British charter) was adopted. Historically, the right protected people accused of crimes from being imprisoned without fair procedures (like indictments and trials, where they would have an opportunity to confront their accusers). The right of due process has grown in two directions: It affords individuals a right to a fair process (known as procedural due process) and a right to enjoy certain fundamental liberties without governmental interference (known as substantive due process). The Fifth Amendments due process clause applies to the federal governments conduct. In 1868 the adoption of the Fourteenth Amendment expanded the right of due process to include limits on the actions of state governments.

Today, court decisions interpreting the Fourteenth Amendments due process right generally apply to the Fifth Amendment and vice versa.

Takings Clause: The takings clause of the Fifth Amendment strikes a balance between the rights of private property owners and the right of the government to take that property for a purpose that benefits the public at large. When the government takes private property, it is required to pay just compensation to the property owner for his or her loss. The takings power of the government, sometimes referred to as the power of eminent domain, may be used for a wide range of valid public uses (for a highway or a park, for example). For the most part, when defining just compensation, courts try to reach some approximation of market value.

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Annenberg Classroom – Fifth Amendment

Fifth Amendment – definition of Fifth Amendment by The …

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An amendment to the US Constitution that provides for due process of law where the government is seeking to deprive a person of life, liberty, or property; provides for Grand Jury proceedings for certain serious offenses; prohibits the government from trying a person again after that person has been acquitted; prohibits the government from forcing a defendant to testify against himself or herself; and prohibits government confiscation of private property for public use without just compensation to the property owner.

1. an amendment to the US Constitution stating that no person may be compelled to testify against himself and that no person may be tried for a second time on a charge for which he has already been acquitted

2. (Law) take the fifth take the fifth amendment US to refuse to answer a question on the grounds that it might incriminate oneself

an amendment to the U.S. Constitution, providing chiefly that no person be required to testify against himself or herself in a criminal case or be subjected to double jeopardy.

An amendment to the United States Constitution establishing that, among other things, no person can be compelled to testify against himself or herself.

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Fifth Amendment – definition of Fifth Amendment by The …

Fifth Amendment of the U.S. Constitution – Index Page

Amendment 5 – Trial and Punishment, Compensation for Takings

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No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Notes for this amendment: Proposed 9/25/1789 Ratified 12/15/1791

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URL: //www.usconstitution.net/xconst_Am5.html

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Will Trump Be the Death of the Goldwater Rule? – The New Yorker

At his rally in Phoenix on Tuesday night, Donald Trump remarked, of his decision to take on the Presidency, Most people think Im crazy to have done this. And I think theyre right.

A strange consensus does appear to be forming around Trumps mental state. Following Trumps unhinged Phoenix speech, James Clapper, the former director of national intelligence, said on CNN, I really question his fitness to be in this office, describing the address as scary and disturbing and characterizing Trump as a complete intellectual, moral, and ethical void. Last week, following Trumps doubling-down on blaming many sides for white-supremacist violence in Charlottesville, Senator Bob Corker, a Republican of Tennessee, said that the President has not yet been able to demonstrate the stability, nor some of the competence, that he needs to lead the country. Last Friday, Representative Zoe Lofgren, a Democrat of California, introduced a resolution urging a medical and psychiatric evaluation of the President, pointing to an alarming pattern of behavior and speech causing concern that a mental disorder may have rendered him unfit and unable to fulfill his Constitutional duties. Lofgren asked, in a press release, Does the President suffer from early stage dementia? Has the stress of office aggravated a mental illness crippling impulse control? Has emotional disorder so impaired the President that he is unable to discharge his duties? Is the President mentally and emotionally stable?

The class of professionals best equipped to answer these questions has largely abstained from speaking publicly about the Presidents mental health. The principle known as the Goldwater rule prohibits psychiatrists from giving professional opinions about public figures without personally conducting an examination, as Jane Mayer wrote in this magazine in May . After losing the 1964 Presidential election, Senator Barry Goldwater successfully sued Fact magazine for defamation after it published a special issue in which psychiatrists declared him severely paranoid and unfit for the Presidency. For a public figure to prevail in a defamation suit, he must demonstrate that the defendant acted with actual malice; a key piece of evidence in the Goldwater case was Facts disregard of a letter from the American Psychiatric Association warning that any survey of psychiatrists who hadnt clinically examined Goldwater was invalid.

The Supreme Court denied Facts cert petition, which hoped to vindicate First Amendment rights to free speech and a free press. But Justice Hugo Black, joined by William O. Douglas, dissented, writing, The public has an unqualified right to have the character and fitness of anyone who aspires to the Presidency held up for the closest scrutiny. Extravagant, reckless statements and even claims which may not be true seem to me an inevitable and perhaps essential part of the process by which the voting public informs itself of the qualities of a man who would be President.

These statements, of course, resonate today. President Trump has unsuccessfully pursued many defamation lawsuits over the years, leading him to vow during the 2016 campaign to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. (One of his most recent suits, dismissed in 2016, concerned a Univision executives social-media posting of side-by-side photos of Trump and Dylann Roof, the white supremacist who murdered nine black churchgoers in Charleston, South Carolina, in 2015; Trump alleged that the posting falsely accused him of inciting similar acts.)

The left-leaning psychiatric community was shamed by the Fact episode for having confused political objection and medical judgment, and came under pressure from the American Medical Association, whose members had largely supported Goldwater over Lyndon Johnson. The A.P.A. adopted the Goldwater rule in 1973; Dr. Alan Stone, my colleague at Harvard Law School, was at the time the only member of the A.P.A.s board to oppose the rule, as a denial of free speech and of every psychiatrist’s God-given right to make a fool of himself or herself. Stone, who has served on the A.P.A.s appeals board, told me that a few members over the years have been sanctioned or warned for Goldwater-rule violations, but that the A.P.A. eventually gave up enforcing it, because of the difficulty of providing due process to the accused.

The psychoanalyst Justin Frank, a clinical professor at George Washington University, simply resigned from the A.P.A. in 2003 before publishing his book Bush on the Couch. He went on to write Obama on the Couch, and is now at work on Trump on the Couch. Frank says that the Goldwater rule forces psychiatrists to neglect a duty to share their knowledge with fellow-citizens. I think its fear of being shunned by colleagues, he told me. Its not about ethics. Had he examined Trump, of course, he would be bound by confidentiality not to speak about him. But Frank believes that restraining psychiatrists from speaking about a President based on publicly available information is like telling economists not to speak about the economy, or keeping lawyers from commenting on legal cases in the public eye.

The A.P.A. reaffirmed and arguably expanded the Goldwater rule in March, stating that it applies not only to a diagnosis but also to an opinion about the affect, behavior, speech, or other presentation of an individual that draws on the skills, training, expertise, and/or knowledge inherent in the practice of psychiatry. The upshot is the attempted removal of more than thirty-seven thousand A.P.A. members from a key public conversation, during a moment when their knowledge and authority might aid the public in responsibly assessing the President. The other major mental-health professional organization, the American Psychological Association, with double the membership, also reconfirmed its version of the Goldwater rule. The much smaller American Psychoanalytic Association told its more than three thousand members last month to feel free to comment about political figuresa reprieve more symbolic than practical, since many members concurrently belong to the American Psychiatric Association.

Some assume that simply opting out of voluntary membership in a professional organization frees a person to speak. But versions of the Goldwater rule exist in state licensing-board standards for psychologists and physicians. Some states adopt wholesale the American Psychological Associations ethical principles as their standard of conduct for licensed psychologists, or have provisions warning that physicians can face disciplinary action for violating a professional medical associations code of ethics. Dr. Leonard Glass, who practices in one such state, Massachusetts, observed last month, in the Boston Globe , that even if nobody has actually lost his or her license for violating the Goldwater rule, it is not trivial to be reported to your licensing board for an ethics violation. This restraint on speech may violate the First Amendment, because, by speaking, practitioners stand to attract state censure, not just disapproval by private organizations. (Disclosure: As a lawyer, I have considered a potential lawsuit based on this First Amendment claim.) It is especially odd to see a muzzling of speech about political figures and elected officials when it is routine for mental-health experts in legal cases to offer opinions based on information from files, without an in-person examinationfor example, to help assess how dangerous a person is.

A congressional bill introduced in April proposes establishing a commission to oversee Presidential capacity, laying down a path that the Twenty-fifth Amendment allows for involuntary removal of a President. Section 4 of that Amendment provides that a congressionally appointed body can determine that the President is unable to discharge the powers and duties of his office. Psychiatrists participation in this constitutional process will depend on their appetite for professional opprobrium.

After Trumps fire and fury remarks about North Korea, earlier this month, Dr. Bandy Lee, a professor of psychiatry at Yale Medical School, sent her second letter about Trump to all members of Congress, warning that his severe emotional impediments pose a grave threat to international security. Four colleagues joined her this time, but, she told me, In the beginning, I was trying to write letters to Congress members and I couldnt get anyone to sign on, even though nobody disagreed. Her book, The Dangerous Case of Donald Trump, forthcoming in October, collects essays by more than a dozen mental-health experts and makes the case that the Trump Presidency is an emergency that not only allows but may even require psychiatrists to depart from the Goldwater rule. Seeking contributors, Dr. Lee was mindful that most colleagues would be nervous walking the tightrope, so she approached prominent writers who might have enough stature to withstand criticism, including Philip Zimbardo, Judith Herman, Robert Jay Lifton, and Gail Sheehy. (Next month, Dr. Lee will have a closed meeting with several as-yet-unnamed lawmakers to advise them on how Congress might convene mental-health professionals to review the Presidents state of mind.)

Many Presidents in our history appear to have served while managing various forms of mental illness, including depression, anxiety, social phobia, and bipolar disorder. President Ronald Reagans staff, for example, worried about signs of dementia. Concerned about Richard Nixons paranoia and heavy drinking in his last days in office, his Defense Secretary is claimed to have told the Joint Chiefs to disregard any White House military orders. But Trump is the only President to be the subject of sustained public discussion about his mental competence and fitness for office.

The Constitution contemplates, by virtue of the First Amendment, that we may freely raise concerns about elected officials, and also that in the extreme circumstance envisioned in the Twenty-fifth Amendment, medical professionals would be free to help us understand whether the President can fulfill his duties. If those who know most are the least free to speak, neither Amendment can function properly. The Goldwater rule was an overreaction to psychiatrists wielding their professional badge to do politics. Today, the profession risks protecting itself from the taint of politics by withholding expertise from a vital public debatea situation that seems no less irresponsible.

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Will Trump Be the Death of the Goldwater Rule? – The New Yorker

5th Amendment – constitution | Laws.com

Fifth Amendment: Protection against abuse of government authority

What is the Fifth Amendment?

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

The Fifth Amendment Defined:

The Fifth Amendment stems from English Common Law and traces back to the Magna Carta in 1215.

The Fifth Amendment is a part of the Bill of Rights, which are the first 10 Amendments to the United States Constitution and the framework to elucidate upon the freedoms of the individual. The Bill of Rights were proposed and sent to the states by the first session of the First Congress. They were later ratified on December 15, 1791.

The first 10 Amendments to the United States Constitution were introduced by James Madison as a series of legislative articles and came into effect as Constitutional Amendments following the process of ratification by three-fourths of the States on December 15, 1791.

Stipulations of the 5th Amendment:

The Fifth Amendment is asserted in any proceeding, whether civil, criminal, administrative, judicial, investigatory, or adjudicatory. The Fifth Amendment protects against all disclosures where the witness reasonably believes the evidence can be used in a criminal prosecution and can lead to the spawning of other evidence that might be used against the individual.

The Fifth Amendment guarantees an American individual the right to trial by Grand Jury for specific crimes, the right not to be tried and subsequently punished more than once for the same crime, the right to be tried with only due process of the law and the right to be awarded fair compensation for any property seized by the government for public use.

The Fifth Amendment also guarantees the individual the right to refrain from self-incrimination by pleading the fifth to any questions or inquiries that may give way to an additional punishment or the notion of a guilty plea.

State Timeline for Ratification of the Bill of Rights

New Jersey:November 20, 1789; rejected article II

Maryland:December 19, 1789; approved all

North Carolina:December 22, 1789; approved all

South Carolina: January 19, 1790; approved all

New Hampshire: January 25, 1790; rejected article II

Delaware: January 28, 1790; rejected article I

New York: February 27, 1790; rejected article II

Pennsylvania: March 10, 1790; rejected article II

Rhode Island: June 7, 1790; rejected article II

Vermont: November 3, 1791; approved all

Virginia: December 15, 1791; approved all

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What Mental Health Experts Can Say About The Presidency – HuffPost

Co-authored by Dee Mosbacher, M.D., Ph.D. and Nanette Gartrell, M.D.

Now that he has won the presidency, why wouldnt he just pivot and become more normal? Why would he say things in public that are destructive to him and the nation? Why stir things up unnecessarily? The chaos and incoherence are much worse than expected.

These are some of the questions and concerns that have been raised about President Trump by persons who are untrained in how mental impairment can manifest. Indeed, the vast array of healthy human behaviors makes it difficult for the ordinary person to detect disability other than in the most obvious cases. Further, the more impaired the individual, the more likely he or she is to deny pathological behavior and insist that it is by choice. In our culture, mental impairment, unlike other medical illnesses, still connotes a moral failureleading to its denial or use only in epithets. Yet it can afflict anyone, it is nonpartisan, and we can identify it through objective criteria.

The Goldwater rule, which specifies that psychiatrists cannot diagnose a public figure without a face-to-face evaluation, has contributed to the lack of discourse and education about Mr. Trump. An expansion of the rule by the American Psychiatric Association in March 2017 further compromised that possibility. Frequently overlooked is the fact that the Goldwater rule itself occurs under the ethical mandate to contribute to the betterment of public health, for which a professional may share with the public his or her expertise about psychiatric issues in general. As a result, mental health issues are continually marginalized, and misconceptions persist. It is commonly assumed, for example, that mental impairment will cancel out responsibility, when this occurs only rarely. Also, mental illness does not imply violence: most mentally ill individuals are not violent, and most violent individuals are not mentally ill. What is important, therefore, is not the diagnosis but the combination of particular symptoms and the context whether observed in a clinical setting or from afar when assessing dangerousness.

In the case of President Trump, it has been apparent for some time that his inability or unwillingness to distinguish fact from fiction, rageful responses to criticism, lack of impulse control, and wanton disregard for the rule of law indicate emotional impairment rather than deliberate choice. Such signs and symptoms may be tolerable in a variety of settings, but not when this individual has command of the nuclear arsenal. Fitness for duty evaluations are a common practice among forensic psychiatrists and other mental health professionals, who follow a standard assessment procedure while applying it to the duty in question. Although military personnel who are responsible for relaying nuclear orders must undergo rigorous mental health and medical evaluations that assess fitness for duty, no such requirement exists for their commander-in-chief.

At a time of increasing conflict abroad and worsening divisions at home, we believe it is time to remedy this situation. The 25th Amendment to the U.S. Constitution, which addresses presidential disability and succession, has never been invoked to evaluate whether a standing president is fit to serve. However, Congress has the ability to act within its provisions to create an independent, impartial panel of investigators to evaluate Mr. Trumps fitness to fulfill the duties of the presidency. Congress can pass legislation to ensure that future presidential and vice-presidential candidates are evaluated by this professional panel before the general election, and that the sitting president and vice-president are assessed on an annual basis.

Our specific recommendations are as follows:

Congress must act immediately. Congressional inaction has brought us to a crisis point: the nuclear arsenal rests in the hands of a president who shows symptoms of serious mental instability, with indications that they will likely escalate. This is an urgent matter of national and international security. We call on our elected officials to heed the warnings of thousands of mental health professionals who have requested an emergency evaluation of Mr. Trump. The world as we know it could cease to exist in a momentary, angry outburst.

Bandy X. Lee, M.D., M.Div., is a forensic psychiatrist on the faculty of Yale School of Medicine. In addition to her clinical work in correctional and public-sector settings, she served as Director of Research for the Center for the Study of Violence. She then co-founded Yales Violence and Health Study Group and leads an academic collaborators group for the World Health Organization. She has consulted with governments to set up violence prevention programs internationally and within the U.S., as well as helped to initiate reforms at New York Citys Rikers Island Correctional Center. She teaches at Yale Law School and Yale College. She published more than 100 peer-reviewed articles and chapters, edited eleven academic books, and authored a textbook on violence. Her latest publication will be a compendium of mental health expertise in the trade book, The Dangerous Case of Donald Trump.

Dee Mosbacher, M.D., Ph.D., is a psychiatrist and Academy Award-nominated documentary filmmaker who was formerly on the faculty of University of California, San Francisco. As a public-sector psychiatrist, Dr. Mosbacher specialized in the treatment of patients with severe mental illness. She served as San Mateo Countys Medical Director for Mental Health and Senior Psychiatrist at San Franciscos Progress Foundation. The Diane (Dee) Mosbacher and Woman Vision Papers are archived at the Sophia Smith Collection, Smith College. Dr. Mosbachers films are also contained within the Smithsonian National Museum of American History collection.

Nanette Gartrell, MD, is a psychiatrist, researcher, and writer who was formerly on the faculties of Harvard Medical School and University of California, San Francisco. Her 47 years of scientific investigations have focused primarily on sexual minority parent families. In the 1980s and 90s, Dr. Gartrell was the principal investigator of groundbreaking investigations into sexual misconduct by physicians that led to a clean-up of professional ethics codes and the criminalization of boundary violations. The Nanette K. Gartrell Papers are archived at the Sophia Smith Collection, Smith College.

Drs. Gartrell and Mosbacher are authors of the chapter: Hes Got the World in His Hands and His Finger on the Trigger: The Twenty- Fifth Amendment Solution, in The Dangerous Case of Donald Trump.

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What Mental Health Experts Can Say About The Presidency – HuffPost

Annenberg Classroom – Fifth Amendment

Fifth Amendment – The Text No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Fifth Amendment – The Meaning Grand Jury Protection: The Fifth Amendment requirement that serious federal criminal charges be started by a grand jury (a group of citizens who hear evidence from a prosecutor about potential crimes) is rooted in English common law. Its basic purpose is to provide a fair method for beginning criminal proceedings against those accused of committing crimes. Grand jury charges can be issued against anyone except members of the military, who are instead subject to courts-martial in the military justice system.

To avoid giving government unchecked powers, grand jurors are selected from the general population and their work, conducted in secret, is not hampered by rigid rules about the type of evidence that can be heard. In fact, grand jurors can act on their own knowledge and are free to start criminal proceedings on any information that they think relevant.

It is these broad powers that have led some critics to charge that grand juries are little more than puppets of prosecutors. Grand juries also serve an investigative role-because grand juries can compel witnesses to testify in the absence of their lawyers.

A significant number of states do not use grand juries, instead they begin criminal proceedings using informations or indictments. The right to a grand jury is one of only a few protections in the Bill of Rights that has not been applied to the states by the Fourteenth Amendment.

Protection against Double Jeopardy: This portion of the Fifth Amendment protects individuals from being twice put in jeopardy of life or limbthat is, in danger of being punished more than once for the same criminal act. The U.S. Supreme Court has interpreted the double jeopardy clause to protect against a second prosecution for the same offense after acquittal or conviction and against multiple punishments for the same crime. Like other provisions in the Bill of Rights that affect criminal prosecutions, the double jeopardy clause is rooted in the idea that the government should not have unlimited power to prosecute and punish criminal suspects. Rather, the government gets only one chance to make its case.

Right against Self-Incrimination: This provision of the Fifth Amendment is probably the best-known of all constitutional rights, as it appears frequently on television and in movieswhether in dramatic courtroom scenes (I take the Fifth!) or before the police question someone in their custody (You have the right to remain silent. Anything you do say can be used against you in a court of law.). The right protects a person from being forced to reveal to the police, prosecutor, judge, or jury any information that might subject him or her to criminal prosecution. Even if a person is guilty of a crime, the Fifth Amendment demands that the prosecutors come up with other evidence to prove their case. If police violate the Fifth Amendment by forcing a suspect to confess, a court may suppress the confession, that is, prohibit it from being used as evidence at trial.

The right to remain silent also means that a defendant has the right not to take the witness stand at all during his or her trial, and that the prosecutor cannot point to the defendants silence as evidence of guilt. There are, however, limitations on the right against self-incrimination. For example, it applies only to testimonial acts, such as speaking, nodding, or writing. Other personal information that might be incriminating, like blood or hair samples, DNA or fingerprints, may be used as evidence. Similarly, incriminating statements that an individual makes voluntarilysuch as when a suspect confesses to a friend or writes in a personal diaryare not protected.

Right to Due Process: The right to due process of law has been recognized since 1215, when the Magna Carta (the British charter) was adopted. Historically, the right protected people accused of crimes from being imprisoned without fair procedures (like indictments and trials, where they would have an opportunity to confront their accusers). The right of due process has grown in two directions: It affords individuals a right to a fair process (known as procedural due process) and a right to enjoy certain fundamental liberties without governmental interference (known as substantive due process). The Fifth Amendments due process clause applies to the federal governments conduct. In 1868 the adoption of the Fourteenth Amendment expanded the right of due process to include limits on the actions of state governments.

Today, court decisions interpreting the Fourteenth Amendments due process right generally apply to the Fifth Amendment and vice versa.

Takings Clause: The takings clause of the Fifth Amendment strikes a balance between the rights of private property owners and the right of the government to take that property for a purpose that benefits the public at large. When the government takes private property, it is required to pay just compensation to the property owner for his or her loss. The takings power of the government, sometimes referred to as the power of eminent domain, may be used for a wide range of valid public uses (for a highway or a park, for example). For the most part, when defining just compensation, courts try to reach some approximation of market value.

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Annenberg Classroom – Fifth Amendment

Fifth Amendment – definition of Fifth Amendment by The …

.

An amendment to the US Constitution that provides for due process of law where the government is seeking to deprive a person of life, liberty, or property; provides for Grand Jury proceedings for certain serious offenses; prohibits the government from trying a person again after that person has been acquitted; prohibits the government from forcing a defendant to testify against himself or herself; and prohibits government confiscation of private property for public use without just compensation to the property owner.

1. an amendment to the US Constitution stating that no person may be compelled to testify against himself and that no person may be tried for a second time on a charge for which he has already been acquitted

2. (Law) take the fifth take the fifth amendment US to refuse to answer a question on the grounds that it might incriminate oneself

an amendment to the U.S. Constitution, providing chiefly that no person be required to testify against himself or herself in a criminal case or be subjected to double jeopardy.

An amendment to the United States Constitution establishing that, among other things, no person can be compelled to testify against himself or herself.

ThesaurusAntonymsRelated WordsSynonymsLegend:

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Fifth Amendment – definition of Fifth Amendment by The …

Fifth Amendment of the U.S. Constitution – Index Page

Amendment 5 – Trial and Punishment, Compensation for Takings

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No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Notes for this amendment: Proposed 9/25/1789 Ratified 12/15/1791

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URL: //www.usconstitution.net/xconst_Am5.html

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Fifth Amendment of the U.S. Constitution – Index Page

5th Amendment – constitution | Laws.com

Fifth Amendment: Protection against abuse of government authority

What is the Fifth Amendment?

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

The Fifth Amendment Defined:

The Fifth Amendment stems from English Common Law and traces back to the Magna Carta in 1215.

The Fifth Amendment is a part of the Bill of Rights, which are the first 10 Amendments to the United States Constitution and the framework to elucidate upon the freedoms of the individual. The Bill of Rights were proposed and sent to the states by the first session of the First Congress. They were later ratified on December 15, 1791.

The first 10 Amendments to the United States Constitution were introduced by James Madison as a series of legislative articles and came into effect as Constitutional Amendments following the process of ratification by three-fourths of the States on December 15, 1791.

Stipulations of the 5th Amendment:

The Fifth Amendment is asserted in any proceeding, whether civil, criminal, administrative, judicial, investigatory, or adjudicatory. The Fifth Amendment protects against all disclosures where the witness reasonably believes the evidence can be used in a criminal prosecution and can lead to the spawning of other evidence that might be used against the individual.

The Fifth Amendment guarantees an American individual the right to trial by Grand Jury for specific crimes, the right not to be tried and subsequently punished more than once for the same crime, the right to be tried with only due process of the law and the right to be awarded fair compensation for any property seized by the government for public use.

The Fifth Amendment also guarantees the individual the right to refrain from self-incrimination by pleading the fifth to any questions or inquiries that may give way to an additional punishment or the notion of a guilty plea.

State Timeline for Ratification of the Bill of Rights

New Jersey:November 20, 1789; rejected article II

Maryland:December 19, 1789; approved all

North Carolina:December 22, 1789; approved all

South Carolina: January 19, 1790; approved all

New Hampshire: January 25, 1790; rejected article II

Delaware: January 28, 1790; rejected article I

New York: February 27, 1790; rejected article II

Pennsylvania: March 10, 1790; rejected article II

Rhode Island: June 7, 1790; rejected article II

Vermont: November 3, 1791; approved all

Virginia: December 15, 1791; approved all

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5th Amendment – constitution | Laws.com

Fifth Amendment – definition of Fifth Amendment by The …

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An amendment to the US Constitution that provides for due process of law where the government is seeking to deprive a person of life, liberty, or property; provides for Grand Jury proceedings for certain serious offenses; prohibits the government from trying a person again after that person has been acquitted; prohibits the government from forcing a defendant to testify against himself or herself; and prohibits government confiscation of private property for public use without just compensation to the property owner.

1. an amendment to the US Constitution stating that no person may be compelled to testify against himself and that no person may be tried for a second time on a charge for which he has already been acquitted

2. (Law) take the fifth take the fifth amendment US to refuse to answer a question on the grounds that it might incriminate oneself

an amendment to the U.S. Constitution, providing chiefly that no person be required to testify against himself or herself in a criminal case or be subjected to double jeopardy.

An amendment to the United States Constitution establishing that, among other things, no person can be compelled to testify against himself or herself.

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Fifth Amendment – definition of Fifth Amendment by The …

Annenberg Classroom – Fifth Amendment

Fifth Amendment – The Text No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Fifth Amendment – The Meaning Grand Jury Protection: The Fifth Amendment requirement that serious federal criminal charges be started by a grand jury (a group of citizens who hear evidence from a prosecutor about potential crimes) is rooted in English common law. Its basic purpose is to provide a fair method for beginning criminal proceedings against those accused of committing crimes. Grand jury charges can be issued against anyone except members of the military, who are instead subject to courts-martial in the military justice system.

To avoid giving government unchecked powers, grand jurors are selected from the general population and their work, conducted in secret, is not hampered by rigid rules about the type of evidence that can be heard. In fact, grand jurors can act on their own knowledge and are free to start criminal proceedings on any information that they think relevant.

It is these broad powers that have led some critics to charge that grand juries are little more than puppets of prosecutors. Grand juries also serve an investigative role-because grand juries can compel witnesses to testify in the absence of their lawyers.

A significant number of states do not use grand juries, instead they begin criminal proceedings using informations or indictments. The right to a grand jury is one of only a few protections in the Bill of Rights that has not been applied to the states by the Fourteenth Amendment.

Protection against Double Jeopardy: This portion of the Fifth Amendment protects individuals from being twice put in jeopardy of life or limbthat is, in danger of being punished more than once for the same criminal act. The U.S. Supreme Court has interpreted the double jeopardy clause to protect against a second prosecution for the same offense after acquittal or conviction and against multiple punishments for the same crime. Like other provisions in the Bill of Rights that affect criminal prosecutions, the double jeopardy clause is rooted in the idea that the government should not have unlimited power to prosecute and punish criminal suspects. Rather, the government gets only one chance to make its case.

Right against Self-Incrimination: This provision of the Fifth Amendment is probably the best-known of all constitutional rights, as it appears frequently on television and in movieswhether in dramatic courtroom scenes (I take the Fifth!) or before the police question someone in their custody (You have the right to remain silent. Anything you do say can be used against you in a court of law.). The right protects a person from being forced to reveal to the police, prosecutor, judge, or jury any information that might subject him or her to criminal prosecution. Even if a person is guilty of a crime, the Fifth Amendment demands that the prosecutors come up with other evidence to prove their case. If police violate the Fifth Amendment by forcing a suspect to confess, a court may suppress the confession, that is, prohibit it from being used as evidence at trial.

The right to remain silent also means that a defendant has the right not to take the witness stand at all during his or her trial, and that the prosecutor cannot point to the defendants silence as evidence of guilt. There are, however, limitations on the right against self-incrimination. For example, it applies only to testimonial acts, such as speaking, nodding, or writing. Other personal information that might be incriminating, like blood or hair samples, DNA or fingerprints, may be used as evidence. Similarly, incriminating statements that an individual makes voluntarilysuch as when a suspect confesses to a friend or writes in a personal diaryare not protected.

Right to Due Process: The right to due process of law has been recognized since 1215, when the Magna Carta (the British charter) was adopted. Historically, the right protected people accused of crimes from being imprisoned without fair procedures (like indictments and trials, where they would have an opportunity to confront their accusers). The right of due process has grown in two directions: It affords individuals a right to a fair process (known as procedural due process) and a right to enjoy certain fundamental liberties without governmental interference (known as substantive due process). The Fifth Amendments due process clause applies to the federal governments conduct. In 1868 the adoption of the Fourteenth Amendment expanded the right of due process to include limits on the actions of state governments.

Today, court decisions interpreting the Fourteenth Amendments due process right generally apply to the Fifth Amendment and vice versa.

Takings Clause: The takings clause of the Fifth Amendment strikes a balance between the rights of private property owners and the right of the government to take that property for a purpose that benefits the public at large. When the government takes private property, it is required to pay just compensation to the property owner for his or her loss. The takings power of the government, sometimes referred to as the power of eminent domain, may be used for a wide range of valid public uses (for a highway or a park, for example). For the most part, when defining just compensation, courts try to reach some approximation of market value.

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Annenberg Classroom – Fifth Amendment

Fifth Amendment of the U.S. Constitution – Index Page

Amendment 5 – Trial and Punishment, Compensation for Takings

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No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Notes for this amendment: Proposed 9/25/1789 Ratified 12/15/1791

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Dumping Trump. All You Need to Know About How He Could Legally Be Removed from the White House – Newsweek

This article first appeared on Just Security.

There are many allegations against Donald Trump that may give rise some day to either criminal prosecution or congressional sanction.

But what precisely are the available options for the special counsel and for members of Congress? What is in their respective tool kits?

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Donald Trump walks toward Marine One on the South Lawn at the White House, on August 14, 2017 in Washington, DC. Mark Wilson/Getty

In this article, we explain a range of options (and the legal issues each raises): including indictment and prosecution, a grand jury statement of wrongdoing, impeachment, censure, and, for the sake of completeness, the Twenty-Fifth Amendment.

In light of reports that Special Counsel Robert Mueller is investigating Trump personally for obstruction of justice, an obvious issue is whether Mueller could ultimately seek to indict and prosecute the president.

The question whether a sitting president can be indicted has vexed generations of constitutional lawyers. The Constitution is silent on the subject and the Supreme Court has not squarely addressed the question.

Within the government, the issue has been considered on five occasions: twice by the Office of Legal Counsel (OLC), by the Solicitor General in the Watergate era, by the Watergate special prosecutor, and then again by the Office of the Independent Counsel in the Clinton era.

A split emerged in those opinions. In general terms, it is fair to say that the presidents immunity from indictment is an open question. The OLCs 2000 opinion, however, is presumably still the prevailing view at least for the Department of Justice.

It holds that a President cannot be indicted or prosecuted while in office, but that temporary immunity, the OLC states, would not preclude such prosecution once the Presidents term is over or he is otherwise removed from office by resignation or impeachment.

Perhaps the most widely held view, adopted by the OLC in memos from 1973 and 2000 and then-Solicitor General Robert Bork in a 1973 brief, is that the president is not susceptible to indictment and prosecution while in office. Broadly, the reasons supporting that position are twofold.

First, looking at the Constitutions text, some suggest that the impeachment procedure must precede an indictment. Article I, section 3 states:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.

Some have argued that this language appearing to contemplate an indictment after an impeachment means that this is the only proper constitutional sequence. This reading has been abandoned for other offices including judges, vice presidents and cabinet officials, watering down its persuasiveness in the presidential context. The 1973 OLC memo didnt rely on it, but Nixon did in his briefs to the Supreme Court the next year.

The stronger argument is based on the unique position of the president in the constitutional structure. The president alone holds all federal executive power, including control of the army and navy, foreign affairs powers, control of executive departments, and the responsibility to execute laws. If the president were indicted, he could potentially be arrested, put on trial, convicted, and incarcerated.

Even if he were eventually acquitted, simply dealing with these processes would demand substantial attention. The OLC opinions in support of constitutional immunity reason that to subject the president to the criminal process would hopelessly handicap him from exercising his power.

That result would implicate the separation of powers by giving the judiciary the power to cripple the executive branch something the Supreme Court cautioned against when considering Nixons immunity from civil suit in Nixon v. Fitzgerald .

There, the Court stated that a president has absolute immunity from civil suit for official acts although that may not include other actions of a president while in office, or actions beforehand as the Supreme Court made clear in Clinton v. Jones .

(Note that Just Security s Ryan Goodman has recently published an analysis of Nixon v. Fitzgerald , arguing that a majority of justices suggested that a president is not immune from criminal prosecution during his term.)

The Bork briefwhich was substantially about the power to indict a vice president, but also considered the same issue vis-a-vis the president also points to the Twenty-Fifth Amendment, which establishes the succession of the presidency and a mechanism for replacing him if he is incapacitated.

[I]t is noteworthy that the President is the only officer of government for whose temporary disability the Constitution provides procedures to qualify a replacement, Bork wrote. This is recognition that the President is the only officer whose temporary disability while in office incapacitates an entire branch of government.

A related point, relied on in the OLC memos and the Bork brief, is that the president controls much of the apparatus surrounding criminal justice: prosecutions; evidence (through the power of executive privilege), and the pardon power. All of this means the common sense approach is to impeach and remove a president (and deprive him of the pardon power), and then prosecute him.

Thats the majority view, but the issue is not settled. Its a somewhat uncomfortable conclusion, running counter to the idea that nobody is above the law and giving the president a king-like immunity even for acts committed totally outside his official duties. Important legal figures have disagreed with it.

Notably, Watergate special prosecutor Leon Jaworski argued against presidential immunity from prosecution in a 1974 Supreme Court brief, following a memo from his staff.

In addition, a 1998 memo written for Independent Counsel Kenneth Starr by constitutional law professor Ronald Rotunda, mounts a strident case for the constitutionality of indicting a sitting president.

Savage calls this the most thorough government-commissioned analysis rejecting a generally held view that presidents are immune from prosecution while in office. At the very least, the 56-page memo is a testament to the debatability of the issue.

One note, though: Rotunda limited his advice to the context of Starrs investigation, whose powers and responsibilities were regulated by statute. That law is no longer in effect, and Robert Muellers position was created by Justice Department regulations instead of directly by congressional statute.

Its this contextual difference that led Rotunda to argue, in a recent op-ed, that while Starr could have indicted Clinton, Mueller cannot indict Trump.

In his Supreme Court brief, Jaworski argued that constitutional and public policy considerations actually cut both ways. The importance of the administration of criminal justice and the principle that under our system no person, no matter what his station, is above the law weigh against presidential immunity.

The Supreme Court took into account similar considerations when finding that Clinton could be sued for acts falling outside his official duties, in Clinton v. Jones . Speaking for the court, Justice Stevens wrote that neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.

The precise scope of the presidents civil immunity is still unclear, and would likely inform a courts evaluation of the scope of criminal immunity while in office.

On top of that, both Jaworski and Rotunda argue that the Constitution provides an explicit immunity for members of Congress, showing the framers turned their minds to the question, but none for the president.

Finally, Jaworski argued, impeachment can only follow high crimes and misdemeanors, which doesnt run the full gamut of criminal offenses. If impeachment had to precede indictment, this would leave a number of crimes which could go entirely unpunished.

Rotunda, in his memo for Starr, adds that impeachable offenses dont have to be violations of criminal statute, demonstrating that they are two different categories of acts.

Rotundas memo makes a couple of further points. First, he suggests that while a president can be indicted, it may be that any imprisonment would have to be deferred until after he leaves office.

He also offers a response to Borks Twenty-Fifth Amendment argument, suggesting that the amendment actually weighs against an immunity because it means there is a structural solution to the incapacitation of the executive branch that an indictment could engender. The vice president could temporarily replace the president if the the latter is disabled.

In the end, neither Jaworski nor Starr attempted to indict the presidents they were investigating. If Mueller were to attempt it, hed be breaking new ground.

But Muellers hands may be tied. The regulations governing his position specify that he must comply with the rules, regulations, procedures, practices and policies of the Department of Justice.

Which raises another contested legal question whether that phrase includes the previous OLC opinions concluding that prosecuting a sitting president is out of bounds.

If so, it wont be for Mueller to make up his own mind on the constitutionality question; hell just have to follow the conclusions expressed in the opinions. (Its for this reason that Rotunda concluded in his recent op-ed that Mueller cannot indict, while Starr could have.)

Whatever constitutional position is ultimately correct, we shouldnt assume the uncertainty necessarily means Mueller wont seek to indict him. As Professor Andrew Crespo points out, it hardly means he cannot be prosecuted.

On the contrary, a lawyers job is often to assess the relevant facts and legal arguments under conditions of uncertainty such as theseand then to make a judgment about how best to proceed. In this instance, that lawyers name is Robert Mueller. should he decide to take us down the road to United States v. Trump, he would be acting well within the law, the norms of the profession, and the reasonable bounds of the discretion with which he has been entrusted.

But he would also be acting professionally if he like Starr decided impeachment were the more appropriate course to pursue.

In the event that Mueller concludes that he cannot indict a sitting president, or that he has insufficient to support criminal liability, but his investigation still turns up evidence of wrongdoing, the grand jury has alternatives.

As Ryan Goodman and Alex Whiting unpack here and here, there are three other possible options. Congress can subpoena the grand jury evidence for the purpose of considering impeachment, which might then become public. The grand jury might also consider presentment, an official declaration that it would have indicted the president were it not for his current official position.

Goodman and Whiting write that this option is not necessarily precluded by any Justice Department legal opinion. Thirdly, the grand jury can use a special procedural device to produce a public report. Of course, none of these mechanisms are really punishment in themselves, but would enhance the presidents accountability.

Impeachment presents no such constitutional issues. Of course, politically its another matter because of the Republican-controlled Congress but there is no question that Congress is empowered to impeach a president.

Article II, section 4 of the Constitution provides that:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

A president can be removed when the House passes articles of impeachment specifying the basis of the impeachment (akin to an indictment) with a simple majority of those members present and voting once quorum requirements are met, and after a trial presided over by the Chief Justice, the Senate can convict with a two-thirds majority of the members present.

The Constitution says that impeachment can follow a presidents high crimes and misdemeanors, but it doesnt define that phrase. That means its in effect for the Congress to interpret, making it more of a political determination than a legal one.

Theres a good argument that several of the main allegations against Trump could justify an impeachment even without connection to an indictable crime. One boundary question is whether a president could be impeached for actions the person took before assuming federal office.

If those actions involved matters related to how the individual got elected, there is a stronger argument for them counting. A 2010 case will be relevant here: the situation of Judge Thomas Porteous, who was impeached and then removed from the bench.

One of the articles of impeachment cited conduct pre-dating his appointment, making false statements to the Senate and FBI in connection with his nomination and confirmation to the U.S. District Court for the Eastern District of Louisiana. He was convicted on that article.

Bill Clinton and Andrew Johnson (back in 1868) were impeached by the House. Nixon resigned ahead of his near-certain impeachment.

A measure short of impeachment that Congress could pursue is censure . It is notable that censure can come from either chamber of Congress, and does not require a super-majority of the Senate as with impeachment.

While constitutional questions have been raised about the practicewhich is not explicitly provided for in the Constitutionit is probably lawful. However, censure is seldom deployed and without legal effect. For more, read our deep dive into the scope and history of censure here.

A more outlandish proposal floating around is using a combination of legislation, a congressional commission, and the Constitutions Twenty-Fifth Amendment to oust President Trump.

Rep. Jamie Raskin (D-Md.) is sponsoring a bill designed to create a congressional oversight commission that could declare Trump incapacitated and have him removed under the Twenty-Fifth Amendment the provision introduced in the wake of Kennedys assassination to kick in when a president can no longer fulfil his duties.

Section 4 of the Amendment allows the Vice-President and a Cabinet majority to declare that the president is unable to discharge the powers and duties of his office, handing the reins over to the VP.

But the section also says a majority of such other body as Congress may by law provide can make the same declaration with the VP and its such an other body that Raskin is trying to create.

The plan would be to create an Oversight Commission on Presidential Capacity, staff it up with four physicians, four psychiatrists and three others (like former presidents) and direct it to examine the president to determine whether the president is incapacitated, either mentally or physically.

This kind of scheme is constitutionally possible, of course, but runs into political problems. Raskin needs to find enough votes not only to pass the legislation but to override the certain presidential veto.

Then, under the Amendment, if Trump challenged the finding and demanded to be reinstated, a two-thirds majority of both houses would need to block that challenge to sustain removal.

On top of that, Mike Pence would need to agree that the president was incapacitated in the first place. All of that seems incredibly unlikely. Even impeachment is simpler.

No president has ever been removed by impeachment. No president has ever been indicted. No president has been censured since 1860. And the Twenty-Fifth Amendment has never been invoked.

Each item on the menu of options laid out in this article has its own flaws and difficulties, and thats why they are so seldom used: indictment is constitutionally questionable, censure is on surer footing but lacks real bite, impeachment requires great political will, and the Twenty-Fifth Amendment requires political will and there are serious questions about its applicability.

Yet this has been a very unusual presidency, and many norms have fallen by the wayside in the wake of Trump. There may be more breaks with convention to come.

Hannah Ryan is a Junior Research Scholar at Just Security.

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Dumping Trump. All You Need to Know About How He Could Legally Be Removed from the White House – Newsweek

Lawsuit seeks $1.2 million from state Sen. Jake Files – Times Record

By John LovettTimes Recordjlovett@swtimes.com

A current lawsuit by First Western Bank names Arkansas state Sen. Jake Files as a defendant with his company, FFH Construction, and several financial organizations he owes money to, including Arvest Bank, Centennial Bank, First National Bank, the Internal Revenue Service and others.

First National Bank has filed a countersuit for assets Files company owes. Answers have also been filed from Arvest and Centennial banks. The IRS, however, has relented to First Western Banks claim of superiority over FFH Construction assets.

According to court documents, the First Western Bank suit seeks more than $1.2 million in payment for loans made to Files since 2013, including loans for land in Fort Smith and Conway.

The state senator, who has announced he will not seek re-election next year, gave a deposition June 28 in Fort Smith to lawyers for First Western Bank and co-defendants Arvest and First National Bank. On recommendation from his attorney, Gunner DeLay of Fort Smith, Files invoked his Fifth Amendment privilege.

DeLay was unable to make the deposition, which had been ordered just two days prior to discovery ofthe location of several assets, including a scissor lift, Sky Track (large forklift) and a trencher. Files presented a list of construction equipment and checking accounts at the deposition and said some of the equipment was with subcontractors named Mike Shuffett of Pocola and Mike Gourley of Van Buren. When asked if the subcontractors had been renting the equipment from FFH Construction, Files said yes.

Mr. Files was as cooperative as he can be and agreed to contact the banks for additional information, Troy Gaston, attorney for First Western Bank, said by phone this week.

Files said by text Friday he was in the process of working with banks to restructure debt and that both Shuffett and Gourley still held the equipment in question. He told lawyers in the deposition that Shuffett and Gourley would not be under the assumption they own the items, and Files said he thought either of the two would voluntarily give those items to the banks.

Shuffett is married to Dianna Gonzalez Shuffett, the recipient of more than $26,000 of a $46,500 state General Improvement Fund grant for waterline work on the failed River Valley Sports Complex at Chaffee Crossing in Fort Smith. The complex was being developed by Files and Lee Webb under a nonprofit group.

The city of Fort Smith filed suit in May for Files and Webb, the Sebastian County election commissioner, to finish a sports complex on which they were the developers and to return $26,945.91 in state grant money.

The city terminated its contract with the River Valley Sports Complex on Feb. 7 after Files and Webb repeatedly missed deadlines to finish the sports complex on city-owned property at Chaffee Crossing. The city entered into the contract in March 2014, expecting the project to be completed by June 2015. The city had agreed to donate $1.6 million to the project in installments and had already donated $1.08 million before severing the contract.

The state grant money, a General Improvement Fund (GIF) grant, was wired to Dianna Gonzalez on Dec. 30 and was intended to be used for waterline work.

None of the work that Gonzalez was hired to do has been completed, although the money was wired to her, City Administrator Carl Geffken told the Times Record in May.

Files went under scrutiny after two of the three contractors listed on the state GIF grant application to the Western Arkansas Planning and Development District (WAPDD) said they did not submit bids for the waterline job. Files said he would provide phone records showing conversations with those two contractors took place, but those documents never surfaced.

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Lawsuit seeks $1.2 million from state Sen. Jake Files – Times Record

Groups ask Supreme Court to grant PLF’s petition in Wayside Church v. Van Buren County – Pacific Legal Foundation (PLF) (press release) (blog)

This week several groups filed friend of the court briefs supporting PLFs Supreme Court petition inWayside Church v. Van Buren County.

Two of the amicus briefsone by AARP and the other by the Buckeye Institutefocus on the need for the Court to review Michigans unjust tax foreclosure law. Under this unjust and unconstitutional law, Van Buren County took Wayside Churchs property, sold it for $206,000 to pay around $16,750 in property taxes, penalties, fees, and interest. The County then pocketed all of the remaining profit as a windfall. Similarly, the county took the farm and home where Henderson Hodgens grew up, and sold it for $47,750 to pay a $5,900 debt. The County kept the entire profit, even though it already got significant benefit from the penalties and high interest rate due under state law. The amicus briefs offer additional arguments that explain why the County violated the constitution when it took thesurplus profit and why it is important that the Court overturn the practice.

The other two briefsoneby Center for Constitutional Jurisprudence, and the other by NFIB Small Business Legal Center, The Cato Institute, and Southeastern Legal Foundationask the Supreme Court to review an important jurisdictional issue in this case. As they succinctly explain, this case presents the Supreme Court with a great opportunity to open the federal courthouse doors to individuals who seek to enforce their Fifth Amendment right to just compensation. Congress intended that the federal courthouses be open for these sorts of claims and there is no reasonto deny individuals of that right.

We are grateful for these organizations support and hope the Supreme Court will grant the petition to remedy the injustice suffered by our clients.

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Groups ask Supreme Court to grant PLF’s petition in Wayside Church v. Van Buren County – Pacific Legal Foundation (PLF) (press release) (blog)

You Should Be Able to Vindicate Federal Property Rights in Federal Court – Cato Institute (blog)

In 2012, various properties in Van Buren County, Michigan became subject to foreclosure for property tax delinquencies. In 2014, the properties were subject to an order of foreclosure and were auctioned off to satisfy the delinquencies. Wayside Church owed $16,750 in back taxes on a parcel it used as a youth camp. When the property was sold for $206,000, Van Buren County kept the $189,250 in surplus as required by Michigans General Property Tax Act. Other taxpayers were similarly situated. For example, Myron Stahl and Henderson Hodgens had their properties auctioned for $68,750 to pay a $25,000 debt and $47,750 to pay a $5,900 debt, respectively.

Michigan law doesnt recognize a right to surplus proceeds from tax sales, so the property owners sued in federal court, alleging that the county violated the Fifth Amendments Takings Clause when it kept the surplus proceeds from the sale of their properties. The district court dismissed the suit, precisely because Michigan law doesnt recognize a right to surplus proceeds in such cases. On appeal, a divided Sixth Circuit dismissed the case for lack of jurisdiction. Citing the Supreme Courts ruling in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985), the court held that plaintiffs failure to first pursue avenues of relief in state court barred the door to federal court.

Wayside Church and the other property owners filed a petition asking the Supreme Court to take the case and clarify takings law. Along with the National Federation of Independent Business, Southeastern Legal Foundation, and Prof. Ilya Somin, Cato has filed an amicus brief supporting that petition. We argue that this case provides an excellent opportunity to preferably overrule, but at least reconsider, Williamson Countys requirement that a property owner must first sue in state court to ripen a federal takings claim.

The reality is that Williamson Countys state-remedies requirement results in constitutional absurdity: the very state court decision that a property owner must receive in order to ripen their claim simultaneously bars the owner from (re)litigating the issue in federal court. The Williamson County rule has also proven to be a potent weapon in the hands of manipulative defendants. Since the Supreme Court ruled in 1997 that a takings claim filed in state court could be removed to federal court (because of the federal constitutional issue), governmental defendants have removed claims to federal court, and then argued that they should be dismissed as unripe!

The state-remedies rule has no doctrinal basis and is antithetical to the Fourteenth Amendment, which was ratified to secure constitutional rights against the states and was seen as necessary to curb state government abuses. Fearing state courts could not be trusted to enforce the U.S. Constitution against their own state governments, a federal civil rights law 42 U.S.C. 1983 was then enacted to ensure a federal forum for vindicating federal rights. Yet Williamson County has effectively gutted the protections of both of these Reconstruction-era reforms.

Before Williamson County, there was no rule that required a property owner to resort to litigation in order to ripen a takings claim, and nothing in the text of the Fifth Amendment suggests that litigation in state court is necessary to ripen a takings claim. Instead, the text should be read to recognize a ripened claim the moment property is taken if there isnt a readily available administrative procedure for obtaining just compensation.

The Supreme Court will decide this fall whether to take upWayside Church v. Van Buren County.

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You Should Be Able to Vindicate Federal Property Rights in Federal Court – Cato Institute (blog)

Lawyers clash over an imaged hard drive as Waymo v. Uber hurtles toward trial – Ars Technica

Enlarge / An Uber driverless Ford Fusion drives in Pittsburgh, Pennsylvania.

Photo by Jeff Swensen/Getty Images

SAN FRANCISCODuring a heated court hearing here today, Waymo lawyersaccused Uber’s law firm, Morrison Foerster, of violating a court order by not handing over documentsthat Waymo says were illegally downloaded from Google.

Waymo filed a lawsuit in February, claiming that theformer head of Uber’s self-driving car project, Anthony Levandowski, downloaded more than 14,000 Google documents that contain trade secrets about self-driving cars,shortly before he left his job at the company. Levandowskithen created a startup called Otto, which he sold to Uber for $680 million. Waymo has saidthat Uberhasused thosetrade secrets, which were brought over by Levandowski.

Uber deniesthat any trade secrets were on Uber servers and says it built its own technology from the ground up. Levandowski, who is not a defendant in the case, hasn’t denied downloading filesinstead, he has pled his Fifth Amendment rights and refused to talk. Uber fired him in May for refusing to cooperate with court orders.

“Weve been trying to get these documents since the outset of this case, and we still dont have them,” Waymo lawyer Charles Verhoeven told US District Judge William Alsup.

Uberattorney Arturo Gonzalez protested that Waymo’sexplanation wasmisleading. It’s true thata digital forensics firm, Stroz Friedberg, imaged Levandowski’s devices as part of Uber’s acquisition. But onlya “tiny sliver” of thoseimages came into Morrison Foerster’s offices, where they were reviewed by a single associate.

The material came in at a time whenMorrison Foerster, often called MoFo for short, was representing Levandowski in an arbitration over his departure from Google.Gonzalez said he “pulled the plug” on the documents being reviewed once he saw that a conflict was developing between Uber and Levandowski.

He alsopointed out that it’s Levandowski who is arguing that the documents are protected by a joint defense privilege. It’s Levandowski’s lawyers, not Uber, who have appealed the issue to the USCourt of Appeals for the Federal Circuit, which still hasnot ruled on the matter.

“Once the FederalCircuit rules, this will be reviewed under whatever protocol we agree to, and produced,”said Gonzalez.

“We have repeatedly asked, specifically, for the Google documents,” said Verhoeven. He continued:

Upuntil June, theysaid they didn’thave it. That MoFodidn’thave it. Thatwas false. Thatis not protected by the FifthAmendment.Theydidnt tell us, intentionallyuntil they were forced to, when we finally battered them down after a dozen motions.

Alsup generally seemed sympathetic to Verhoeven, although he said he would wait for the Federal Circuit ruling. When he pondered a solution to the matter, he said he was inclined to tell the jury exactly what happened.

“I am concerned thatMr. Gonzalezfailed to disclose that he had the documents,” Alsup said. “He took a long time to come clean. Maybe he can get on the stand and explain it away. Iam inclinedto tell the jury exactly this scenariothat he was ordered to come clean and did not come clean. Then finally in June and July, he comes clean.”

“You’ve bought into a completely false narrative,” Gonzalez said. “We’renot trying to hide anything. Thistrial is against Uber. Uberdidn’t even know MoFohad these documents. Thedownloadedmaterials are not at MoFo, and Uberdidn’t even know we had these materials.”

The arguments over Levandowski’s documents were part of a series of three motions that will lay the groundwork for an October trial,now less than 60 days away.

In addition to hearing arguments overLevandowski’s imaged devices, Alsup heard two other motions filed by Uber: one attacking Waymo’s damages case and another attempting to limit the trade secrets that Waymo can present at trial.

“Uber does not have [damage] calculations, the basis for them, the theoriesand methodology that they’re going to rely on,” said Uber lawyer Karen Dunn. “It may be time to face up to the fact they want an injunction. They don’thave a damages case at allit’s a non-commercialized market.”

A Waymo attorney countered that the companyhad provided a 26-page narrative outlining its damages theories.

“We just got Uber’sside of the ledger yesterday,” said Waymo attorney Melissa Baily. “So nowwe have ninedays [before the end of discovery] to take that into account. We cant do a complete analysis without that information.”

Alsup didn’t rule on the damages matter, saying that he needs to see where thetwo sides come out on the matter.

“Thenit will be clearer how fair or unfair the process has been,” he said. “This piece of the controversy will be held in abeyance for a while.”

A final motion, over limiting Waymo’s alleged trade secrets, was held in closed session.

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Lawyers clash over an imaged hard drive as Waymo v. Uber hurtles toward trial – Ars Technica

Service Members Sue Trump Over Ban on Transgender People in the Military – Bigger Law Firm Magazine

On Wednesday, August 9, 2017, five active-duty service members filed a lawsuit against President Trump regarding his plan to institute a ban on transgender people from serving in the military.

In response to his stated intention, five anonymous Jane Does filed suit, claiming that the order to implement a ban on service by transgender individuals is in violation of both the Equal Protection element of the Fifth Amendment and the Due Process Clause of the Fifth Amendment to the U.S. Constitution.

The plaintiffs are:

The National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates and Defenders (GLAD) are advocating on their behalf. Trump declared in a succession of tweets on July 26, 2017 that the U.S. government will not permit transgender persons to serve in the military. However, the military has not released a policy explaining the way in which that mandate would be accomplished.

In June 2016, the Obama administration repealed the ban on transgender troops, and since then, hundreds of service members have been openly serving. According to a study conducted by the Rand Corp., and authorized by the Pentagon last year, there are approximately 11,000 transgender troops in the reserves, and serving on active duty in the military.

Trumps decision puts an end to the furtherance of rights for lesbian, gay, bisexual and transgender people in the U.S. military that started with the revocation of the dont ask, dont tell policy in 2010. Trumps explanation for his decision was the inability of the military to assume responsibility for the increased medical expenses and the disturbance that transgender troops would create. However, Trumps declaration has caused Republicans and Democrats in Congress to be worried about the expansive scope of Trumps directive.

Republicans critical of Trumps decision One critic of Trumps policy change is Senator John McCain (R-Ariz.), the chairman of the Senate Armed Services Committee, who disagreed with terminating dont ask, dont tell in 2010. Sen. McCain took issue with the way in which Trump expressed his message, and its ramifications for transgender members on active duty. McCain said it was inappropriate for important announcements regarding policy to be made via Twitter.

He also stated that any American who was in compliance with medical and readiness guidelines should be permitted to continue serving, and that it is unreasonable to compel service members who have the ability to engage in combat, training and deployment, to exit the military, notwithstanding their gender identity. In addition to McCain, Republican Sens. Orrin G. Hatch (Utah), Joni Ernst (Iowa), an Army veteran, and Richard C. Shelby (Ala.) put forth statements that cast doubt on Trumps decision.

Trump faced pressure from conservative Republicans Trumps tweets on the subject may well be in response to lobbying on the part of conservative Republicans to revert to the policy in place prior to the time of the Obama administration. He posted his tweets on the subject just weeks following the rejection by the House of an amendment to the annual defense policy bill that would have prevented the Pentagon from providing gender-transition therapies to members on active duty. However, conservative legislators, several of whom are members of the House Freedom Caucus, had warned that they would refuse to back a spending bill if Congress did not forbid the Pentagon from financing the procedures. The deadlock jeopardized government spending, and possibly held up funds that had been earmarked for the border wall between the United States and Mexico.

Comments from a military attorney Military attorney Matt C. Pinsker, who is also a criminal defense attorney and an Adjunct Professor at Virginia Commonwealth University, offered his comments on the transgender ban. Pinsker says the implications of a transgender ban for those currently serving would be an Honorable Discharge. Or they would be grandfathered in and permitted to continue serving. He also states a ban is unlikely to have any effect on civilian employment following military service.

Additionally, a ban is very unlikely to affect eligibility to receive veterans benefits. Pinsker went on to say that a transgender person should not join the military because you are dependent on medications, and without them, your physical or mental health suffers, endangering not just your own well-being, but that of those depending on you. (This also eliminates people with heart conditions, diabetes and ADHD).

Plaintiffs relied on change in policy Each of the plaintiffs said they acted in reliance on the 2016 change in policy when they informed commanding officers that they were transgender. They are requesting that the court hold that Trumps objective is in violation of the pledge the government made to military members. The lawsuit claims that since they described themselves as transgender as a result of defendants prior promise, plaintiffs are now bereft of the security and confidence they possessed with respect to their careers and benefits. Such benefits include post-military and retirement benefits that are dependent on the duration of their service. More lawsuits are expected to follow upon the official issuance of the ban.

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Service Members Sue Trump Over Ban on Transgender People in the Military – Bigger Law Firm Magazine

The US Government’s Secret War on the KKK Involved the FBI, Fidel Castro and Lots of Dirty Tricks – Newsweek

Newsweekpublished this story under the headline of G-Men and Klansmen on August 25, 1975. Due to recent events at a white supremacist rally in Charlottesville, Virginia, which resulted in one death and 19 injuries,Newsweekis republishing the story.

For decades, almost without restraint, the Federal Bureau of Investigation has carried out a wide range of undercover intelligence projects. Unknown to most Americans, some of these operations probably included violations of the law – and others, as they became known, seemed simply foolish. Last week, at the American Bar Association convention in Montreal, Attorney General Edward H. Levi made clear that he intended to put a leash on the FBI by instituting “guidelines” to cover its intelligence activities.

Levi proposed to restrict domestic intelligence gathering to circumstances that may threaten violence in the nation, and he promised to review these programs periodically. Electronic surveillance, such as wiretapping, would be limited to long-range investigations. The use by the FBI of “provocateurs” to lure unpopular people and groups into trouble would be barred completed. The vast amount of unsolicited – and often derogatory – material that the bureau receives about government officials and private citizens would be destroyed within 90 days if it could not be connected to criminal misconduct. And as part of the Watergate legacy. Levi sought to make sure that the bureau was not misused for political purposes. The FBI would undertake probes for the White House, he said, only upon written request by specified high-ranking officials.

As it happened, even as Levi was announcing his guidelines, the FBI released last week some fresh details of just the sort of operation the new rules were designed to prevent:

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Most recent revelations of FBI harassment have involved left-wing groups such as antiwar organizations and the Socialist Workers Party. The newly released document showed that throughout the 1960s, the bureau had also waged a spirited and often imaginative counter-intelligence program – COINTELPRO, in bureau jargon – against right-wing outfits like the Ku Klux Klan and theAmerican Nazi Party.

Central to this campaign was a wholly fictitious organization, surreptitiously run from Washington, dubbed “The National Committee for Domestic Tranquility.” In a coy touch of esoteric humor, some unknown wag in the Bureau christened the bogus organization’s director “Harman Blennerhassett” – the name of an obscure financial supporter of Aaron Burr in the early nineteenth century. In thousands of mailings to unsuspecting Klansmen, the “committee” portrayed Klan leaders as Communist dupes or greedy grafters and parasites living off the membership.

“By placing themselves above the law of the land through the invocation of the Fifth Amendment,” the committee wrote haughtily, “these irresponsible Klan leaders have joined hands with Communists who also always hide behind the Fifth Amendment.” FBI field agents prodded the Klan with thousands of postcards, intentionally exposing the messages to outsiders along the way. One widely distributed postcard featured a cartoon of two Klansmen drinking at a bar over a caption, “Which Klan leaders are spending your money tonight?” The bureau also sent anonymous letters accusing various Klansmen of being FBI informants – which carried a double edge. They helped to protect the real informants, of whom there were at least hundreds, and they made Klansmen suspicious of almost everybody.

The FBI had a well-stocked bag of dirty tricks. It once faked a picture of a Miami Klansman consorting with Cuba’s Fidel Castro. Upon learning that the Klan was holding a meeting in North Carolina, it called various motels in the area to cancel their room reservations. One Klan official was discovered to be receiving a veteran’s disability pension while making $400 a month as a plumbing and electrical contractor; the G-men sicked the Veterans Administration on him to cut off his benefits, then for good measure alerted the Internal Revenue Service that he had not filed income-tax returns for several years.

Trinkets: Almost nothing was beneath the bureau’s notice. COINTELPRO proposed an attempt to persuade Virginia GovernorMills E. Godwin Jr. to collect sales tax on trinkets sold at Klan rallies. The bureau seemed particularly upset with the Virginia Klan. A Washington memo, omitting any mention of attacks on blacks, noted the Klan had attacked the FBI. One Klan leader announced that it would be KKK policy to shoot any agent who appeared on its property.

In its campaign against the Nazi Party, the FBI informed party members that their Midwest coordinator was of Jewish descent, thus forcing his rapid expulsion. In the mid-’60s, the Chicago chapter of the party exhausted its meager financial resources to buy and repair a rundown building for use as it headquarters. After waiting until the job was completed, agents anonymously called Cook County inspectors who closed the building for technical violations.

The hitherto-secret FBI report also revealed that in its COINTELPRO campaign the bureau had carefully manipulated the press, leaking to friendly newsmen stories that were sometimes true and sometimes not. It provides prominent Southern publisher Ralph McGill with information to pass on to a colleague who was writing an article about the Klan for a national magazine. McGill is “a staunch and proven friend of the bureau,” a memo from Washington to Atlanta said, and “would not betray our confidence.”

Two members of the Virgil Griffin White Knights, a group that claims affiliation with the Ku Klux Klan, pose for a photograph in their robes ahead of a cross lighting ceremony at a private farm house in Carter County, Tennessee July 4, 2015. REUTERS/Johnny Milano

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The US Government’s Secret War on the KKK Involved the FBI, Fidel Castro and Lots of Dirty Tricks – Newsweek


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