Your Fifth Amendment Privilege Against Self-Incrimination …

Posted on May 19, 2019 by Dook Domini

Weve all read reports and seen news coverage of a witness declining to answer questions on the grounds that the responses may incriminate himhe claims the Fifth. A witness in that situation is relying on the Fifth Amendment to the United States Constitution, which provides that no person shall be compelled in any criminal case to be a witness against himself. If, by answering, the witness could provide evidence that might aid the government in prosecuting him, then he has the right to refuse.

(For another angle to this right, see Immunity From Prosecution. Also see Can one person claim the Fifth Amendment on anothers behalf?)

Witnesses can assert the privilege against self-incrimination in civil proceedings as well as criminal ones, despite the seemingly limiting language of the Fifth Amendment. They can assert it in state or federal court, in a wide variety of proceedings (including trials, depositions, administrative law proceedings, and investigatory proceedings like grand jury hearings). But interestingly, if the witness fears exposure to prosecution in a country other than the U.S., the privilege does not apply. (United States v. Balsys, 524 U.S. 666, 672 (1998).)

Not every disclosure can be the subject of a Fifth Amendment assertiononly those that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. (Kastigar v. United States, 406 U.S. 441, 444-445 (1972).) The key word here is reasonably. Responses to questions that would be of no use to prosecutors, or that couldnt contribute to a prosecution because of the passing of the statute of limitations, cannot take refuge within the Fifth. But if the prosecution can make use of the answer itself or any evidence it might lead to, the witness is entitled to claim the privilege against self-incrimination.

Often, witnesses are involved in two cases at the same time: one civil and one criminal. For example, a witness might be called to testify before a governmental body while a criminal case against her is in the investigative stages. The witnesss lawyer will likely advise her to invoke the Fifth Amendment. Why is this a good idea?

First, because the potential consequences of a criminal proceeding (including jail or prison) are more dire than those of a civil case, a witness may be able to get a judge to stay, or postpone, the civil matter until the criminal one is concluded. Even if theres no stay, a witness is usually better off asserting the privilege if truthful answers will tend to incriminate her with respect to the criminal case.

Theres a real risk that innocent mistakes or omissions in a civil matter thats held before the completion of a criminal investigation will come back to haunt the defendant. Its even possible that a mistake in a civil proceeding will lead to a prosecution not just for the underlying criminal act, but also for being untruthful, in which case eventual charges might include obstruction of justice or even perjury.

A witness can waive the right to invoke the Fifth by later making statements about the topic in question. For example, if a witness invokes the Fifth, but goes on to selectively answer questions about the same subject matter, a judge might decide that the later answers vitiated the initial waiver. But judges are hesitant to declare the privilege waived because of its importance. For instance, a brief and general statement about ones innocence, following invocation of the Fifth, probably wont constitute a waiver.

Importantly, even if a judge finds that a person waived the privilege, that waiver will extend only to the current proceeding. A witness who answers questions subsequent to invoking the Fifth, who is ordered by a judge to continue answering based on waiver, can reassert the privilege in a later, different proceeding. For example, a defendant who waives the privilege while testifying in one case can assert it when called to testify in another.

Additionally, a witness can begin testifying but invoke the privilege when answers to later questions would be incriminating. If the prosecutor commences by asking benign questions that the witness answers (What were you wearing that night?), but moves into questions that go to the heart of the matter (How many times did you meet with the defendant?), the witness may claim the privilege.

At first blush, it might seem that whenever answers to questions might incriminate oneself, it makes sense to decline to answer. Many times claiming the Fifth is the best course of action, but there may be instances when it will do more harm than good. For example:

Yet, a witness who could claim the Fifth but is tempted to answer should first discuss the issue thoroughly with an attorney. Suppose a witness in a civil case may be able to supply credible answers that could form the basis for a strong defense against a future criminal proceeding. A prosecutor confronting these convincing, under-oath answers might decide not to file charges. Of course, if the witness fibs, omits something, or gets confused on cross-examination, she may doom herself. Thats why the guidance of a knowledgeable attorney is crucial.

The decision as to whether to invoke ones Fifth Amendment right against self-incrimination in a civil or criminal proceeding is very complicated, involving an assessment of both the facts and the relevant law in your jurisdiction. Only careful discussion and preparation with your lawyer will enable you to make a wise decision. Never head into a situation where testimony could end up hurting you without professional advice.

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Your Fifth Amendment Privilege Against Self-Incrimination ...

Fifth Amendment | Wex Legal Dictionary / Encyclopedia …

Posted on May 16, 2019 by Dook Domini

Fifth Amendment: An Overview

TheFifth Amendmentof theU.S. Constitutionprovides, "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 clauses incorporated within the Fifth Amendment outline basic constitutional limits on police procedure. The Framers derived the Grand Juries Clause and the Due Process Clause from the MagnaCarta, dating back to 1215. Scholars consider the Fifth Amendment as capable of breaking down into the following five distinct constitutional rights: 1) right to indictment by the grand jury before any criminal charges for felonious crimes, 2) a prohibition on double jeopardy, 3) a right against forced self-incrimination, 4) a guarantee that all criminal defendants have a fair trial, and 5) a guarantee that government cannot seize private property without making a due compensation at the market value of the property.

While the Fifth Amendment originally only applied to federal courts, the U.S. Supreme Court has partially incorporated the 5th amendment to the states through the Due Process Clause of theFourteenth Amendment. The right to indictment by the Grand Jury has not been incorporated, while the right against double jeopardy, the right against self-incrimination, and the protection against arbitrary taking of a private property without due compensation have all been incorporated to the states.

Grand Juries

Grand juriesare a holdover from the early British common law dating back hundreds of years. Deeply-rooted in the Anglo-American tradition, the grand jury was originally intended to protect the accused from overly-zealous prosecutions by the English monarchy. In the early phases of the development of the U.S. Constituion, the Founding Fathers have decided to retain the Grand Jury system as a protection against over-zealous prosecution by the central government. Although the Supreme Court in Hurtado v. California in 1884 has refused to incorporate the Grand Jury system to all of the states, most states have independently decided to retain a similar form of Grand Jury, and currently, all but two states (Connecticut and Pennsylvania) have the grand jury.

Congressional statutes outline the means by which a federal grand jury shall be impaneled. Ordinarily, the grand jurors are selected from the pool of prospective jurors who potentially could serve on a given day in any juror capacity. At common-law, a grand jury consists of between 12 and 23 members. Because the Grandjurywas derived from the common-law, courts use the common-law as a means of interpreting the Grand Jury Clause. While state legislatures may set the statutory number of grand jurors anywhere within the common-law requirement of 12 to 23, statutes setting the number outside of this range violate the Fifth Amendment. Federal law has set the federal grand jury number as falling between 16 and 23.

A person being charged with a crime that warrants a grand jury has the right to challenge members of the grand juror for partiality or bias, but these challenges differ from peremptory challenges, which a defendant has when choosing a trial jury. When a defendant makes a peremptory challenge, the judge must remove the juror without making any proof, but in the case of a grand juror challenge, the challenger must establish the cause of the challenge by meeting the same burden of proof as the establishment of any other fact would require. Grand juries possess broad authority to investigate suspected crimes. They may not, however, conduct "fishing expeditions" or hire individuals not already employed by the government to locate testimony or documents. Ultimately, grand juries may make a presentment, informing the court of their decision to indict or not indict the suspect. If they indict the suspect, it means they have decided that there is a probable cause to believe that the charged crime has indeed been committed and by the suspect

Double Jeopardy

The Double Jeopardy Clause aims to protect against the harassment of an individual through successive prosecutions of the same alleged act, to ensure the significance of an acquittal, and to prevent the state from putting the defendant through the emotional, psychological, physical, and financial troubles that would accompany multiple trials for the same alleged offense. Courts have interpreted the Double Jeopardy Clause as accomplishing these goals by providing the following three distinct rights: a guarantee that a defendant will not face a second prosecution after an acquittal, a guarantee that a defendant will not face a second prosecution after a conviction, and a guarantee that a defendant will not receive multiple punishments for the same offense. Courts, however, have not interpreted the Double Jeopardy Clause as either prohibiting the state from seeking review of a sentence or restricting a sentence's length on rehearing after a defendant's successful appeal.

Jeopardy refers to the danger of conviction. Thus, jeopardy does not attach unless a risk of the determination of guilt exists. If some event or circumstance prompts the trial court to declare a mistrial, jeopardy has not attached if the mistrial only results in minimal delay and the government does not receive addedopportunityto strengthen its case.

Self-Incrimination

The Fifth Amendment also protects criminal defendants from having to testify if they may incriminate themselves through the testimony. A witness may "plead the Fifth" and not answer if the witness believes answering the question may be self-incriminatory.

In the landmarkMiranda v. Arizonaruling, the United States Supreme Court extended the Fifth Amendment protections to encompass any situation outside of the courtroom that involves the curtailment of personal freedom. 384 U.S. 436 (1966). Therefore, any time that law enforcement takes a suspect into custody, law enforcement must make the suspect aware of all rights.Known asMirandarights, these rights include the right to remain silent, the right to have an attorney present during questioning, and the right to have a government-appointed attorney if the suspect cannot afford one.

However, courts have since then slightly narrowed the Miranda rights, holding that police interrogations or questioning that occur prior to taking the suspect into custody does not fall within the Miranda requirements, and the police are not required to give the Miranda warnings to the suspects prior to taking them into custody, and their silence in some instances can be deemed to be implicit admission of guilt.

If law enforcement fails to honor these safeguards, courts will often suppress any statements by the suspect as violating the Fifth Amendment protection against self-incrimination, provided that the suspect has not actually waived the rights. An actual waiver occurs when a suspect has made the waiver knowingly, intelligently, and voluntarily. To determine if a knowing, intelligent and voluntary waiver has occurred, a court will examine the totality of the circumstances, which considers all pertinent circumstances and events. If a suspect makes a spontaneous statement while in custody prior to being made aware of theMirandarights, law enforcement can use the statement against the suspect, provided that police interrogation did not prompt the statement. The Fifth Amendment right does not extend to an individual's voluntarily prepared business papers because the element of compulsion is lacking. Similarly, the right does not extend to potentially incriminating evidence derived from obligatory reports or tax returns.

To be self-incriminating, the compelled answers must pose a substantial and real, and not merely a trifling or imaginary hazard of criminal prosecution

After Congress passed the Crime Control and Safe Streets Act, some felt that the statute by implication overruled the requirements ofMiranda. Some scholars also felt that Congress constitutionally exercised its power in passing this law because they felt thatMirandarepresented a matter of judicial policy rather than an actual manifestation of Fifth Amendment protections. InDickerson v.UnitedStatesthe U.S. Supreme Court rejectedthis argumentand held that the Warren Court had directly derivedMirandafrom the Fifth Amendment.

Due Process Clause

The guarantee ofdue processfor all persons requires the government to respect all rights, guarantees, and protections afforded by the U.S. Constitution and all applicable statutes before the government can deprive any person of life, liberty, or property.Dueprocess essentially guarantees that a party will receive a fundamentally fair, orderly, and just judicial proceeding. While the Fifth Amendment only applies to the federal government, the identical text in the Fourteenth Amendment explicitly applies this due process requirement to the states as well.

Courts have come to recognize that two aspects of due process exist: procedural due process andsubstantive due process.The proceduraldue processaims to ensure fundamental fairness by guaranteeing a party the right to be heard, ensuring that the parties receive proper notification throughout the litigation, and ensures that the adjudicating court has the appropriate jurisdiction to render a judgment. Meanwhile, substantive due process has developed during the20thcentury as protecting those substantive rights so fundamental as to be "implicit in the concept of ordered liberty."

Just Compensation Clause

While the federal government has a constitutional right to "take" private property for public use, the Fifth Amendment's Just Compensation Clause requires the government to pay just compensation, interpreted as market value, to the owner of the property, valued at the time of the takings. The U.S. Supreme Court has defined fair market value as the most probable price that a willing butunpressuredbuyer, fully knowledgeable of both the property's good and bad attributes, would pay. The government does not have to pay a property owner's attorney's fees, however, unless a statute so provides.

In2005, in Kelov.Cityof New London, the U.S. Supreme Court had rendered a controversial opinion in which they held that a city could constitutionally seize private property for private commercial development, where the redevelopment would economically benefit an area that was sufficiently distressed to justify a program of economic rejuvenation. 545 U.S. 469 (2005). However, after the Kelo decision, some state legislatures passed statutory amendments to counteract Kelo and expand protection for the condemnees. See e.g., Condemnation by Redevelopment Auth. of Fayette Certain Land in Brownsville Borough v. Redevelopment Auth., 152 A.3d 375, 376 (Pa. Commw. Ct. 2016). Nevertheless, Kelo remains a valid law under the federal context, and its broad interpretation of "public use" still holds true under the federal protection for the Fifth Amendment right to just compensation.

Last Edited by Jonathan Kim, June 2017

Fifth Amendment – Kids | Laws.com

Posted on May 5, 2019 by Dook Domini

A Guide to the Fifth Amendment

The Fifth Amendment, or Amendment V of the United States Constitution is the section of the Bill of Rights that protects you from being held for committing a crime unless you have been indicted correctly by the police. The Fifth Amendment is also where the guarantee of due process comes from, meaning that the state and the country have to respect your legal rights. The Fifth Amendment was introduced as a part of the Bill of Rights into the United States Constitution on September 5, 1789 and was voted for by of the states on December 15, 1791.

History of the Fifth Amendment

Once the United States won their independence from the British Parliament and monarchy that had acted like tyrants, the Framers of the United States Constitution did not trust large, centralized governments. Because of this, the Framers wrote the Bill of Rights, which were the first 10 amendments, to help protect individual freedoms from being hurt by the governmental. They included the Fifth Amendment, which gave five specific freedoms to American citizens.

Understanding the Fifth Amendment Line by Line

If you are confused by what each line means, here are some explanations to make the Fifth Amendment easier to understand:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury: No one can be put on trial for a serious crime, unless a grand jury decide first that there is enough proof or evidence so that the trial is needed. If there is enough evidence, an indictment is then issued, which means that the person who is charged with the crime will can put on trial for the crime.

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: People in the military can go to trial without a grand jury first deciding that it is necessary. This is the case if the military person commits a crime during a national emergency or a war.

Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb: If someone is put on trial for a certain crime and the trial ends, the person cannot be tried once more for the same crime. If a person is convicted of a crime and then serves his or her time in jail, or if the person is acquitted, he or she cannot be put on trial a second time.

Nor shall be compelled in any criminal case to be a witness against himself: The government does not have the power to make someone testify against himself. That is why a trial uses evidence and witnesses instead of the testimony of the accused person.

Nor be deprived of life, liberty, or property, without due process of law: The government cannot take away a persons life, property, or freedom without following certain steps that give the person a fair chance. This is what is known as due process. Due Process helps protect a persons rights.

Nor shall private property be taken for public use, without just compensation: The government cannot take away a persons property for public use without somehow paying them back for it.

Facts About the Fifth Amendment

The Fifth Amendment was introduced into the Constitution by James Madison.

The ideas in the Fifth Amendment can be traced back to the Magna Carta, which was issued in 1215.

A defendant cannot be punished for using his right to silence during a criminal trial, but there are some consequences to using it in a civil trial.

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Fifth Amendment - Kids | Laws.com

US Government for Kids: Fifth Amendment – Ducksters

Posted on April 16, 2019 by Dook Domini

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From the Constitution

Here is the text of the Fifth Amendment from the Constitution:

"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 Grand Jury

The first part of the amendment talks about a grand jury. The grand jury is a jury that decides if a trial should be held. They look at all the evidence and then decide if a person should be charged with a crime. If they decide there is enough evidence, then they will issue an indictment and a regular trial will be held. The grand jury is only used in cases where the punishment for the crime is severe such as life in prison or the death sentence.

Double Jeopardy

The next section protects the person from being tried for the same crime more than once. This is called double jeopardy.

Perhaps the most famous part of the Fifth Amendment is the right to not testify against yourself during a trial. This is often called "taking the fifth." The government must present witnesses and evidence to prove the crime and cannot force someone to testify against themselves.

You've probably heard the police on TV say something like "you have the right to remain silent, anything you say or do may be used against you in a court of law" when they arrest someone. This statement is called the Miranda Warning. Police are required to tell people this before they question them as part of the Fifth Amendment. It reminds citizens that they don't have to testify against themselves.

The amendment also states that a person has a right to "due process of law." Due process means that any citizen charged with a crime will be given a fair trial that follows a defined procedure through the judicial system.

The last section says that the government can't take a person's private property without paying them a fair price for it. This is called eminent domain. The government can take your property for public use, but they have to pay you a fair price for it.

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US Government for Kids: Fifth Amendment - Ducksters

"Fifth Amendment" Defined & Explained

Posted on March 24, 2019 by Dook Domini

'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.'

The Fifth Amendment 'can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.' Kastigar v. U.S., 406 U.S. 441, 44-45 ('72). A reasonable belief that information concerning income or assets might be used to establish criminal failure to file a tax return can support a claim of Fifth Amendment privilege. See U.S. v. Rendahl, 746 F.2d 553, 55-56 (9th Cir.'84).

The only way the Fifth Amendment can be asserted as to testimony is on a question-by-question basis. Rendahl, 746 F.2d at 555, citing with approval U.S. v. Bell, 448 F.2d 40, 42 (9th Cir.'71) (Fifth Amendment challenge premature on appeal from enforcement order; appellant must present himself for questioning after enforcement and as to each question elect to raise or not to raise the defense).

The appropriate device for compelling answers to incriminating questions is a government grant of use immunity. See Sharp, 920 F.2d at 1172.

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"Fifth Amendment" Defined & Explained

Fifth Amendment | Wex Legal Dictionary / Encyclopedia | LII …

Posted on November 20, 2018 by Dook Domini

Fifth Amendment: An Overview

Grand Juries

Double Jeopardy

Self-Incrimination

To be self-incriminating, the compelled answers must pose a substantial and real, and not merely a trifling or imaginary hazard of criminal prosecution

Due Process Clause

Just Compensation Clause

Last Edited by Jonathan Kim, June 2017

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Fifth Amendment | Wex Legal Dictionary / Encyclopedia | LII ...

Amendment V – The United States Constitution

Posted on November 20, 2018 by Dook Domini

Three of the five clauses of the Fifth Amendment pertain to procedures that must, or must not, be used in criminal prosecutions.

Grand Jury Indictment

The first of the criminal procedure clauses requires that felony offenses in federal court be charged by grand jury indictment. (A grand jury is a panel of citizens that hears evidence that the prosecutor has against the accused, and decides if an indictment, or formal criminal charges, should be filed against them.) This is one of only a few provisions of the Bill of Rights that the Supreme Court has not held to apply to the states through the Due Process Clause of the Fourteenth Amendment (the others being the Third Amendments protection against quartering of soldiers, the Sixth Amendments requirement of trial in the district where the crime was committed, the Seventh Amendments requirement of jury trial in certain civil cases, and possibly the Eighth Amendments prohibition of excessive fines).

That the Court has been reluctant to apply the grand jury requirement to the states is unsurprising. While the origins of the grand jury are ancientan ancestor of the modern grand jury was included in the Magna Cartatoday, the United States is the only country in the world that uses grand juries. In addition to the federal government, about half the states provide for grand juriesthough in many of these there exist other ways of filing formal charges, such as a prosecutorial information followed by an adversarial but a relatively informal preliminary hearing before a judge (to make sure there is at least probable cause for the charge, the same standard of proof that a grand jury is told to apply). As early as 1884, the Supreme Court held that the grand jury is not a fundamental requirement of due process, and Justice Holmes lone dissent from that judgment has been joined by only one Justice (Douglas) in the intervening years.

Recent scholarship has upset the previous understanding that the grand jury was from its inception venerated because it was not only a sword (accusing individuals of crimes) but also a shield (against oppressive or arbitrary authority). In its early incarnation in England, the grand jury was fundamentally an instrument of the crown, obliging unpaid citizens to help enforce the Kings law. Over the centuries, the idea of a citizen check on royal prerogative became more valued. By the time of the framing of our Constitution, both the grand jury (from the French for large, in sizetoday grand juries are often composed of 24 citizens), and the petit jury (from the French for smalltoday criminal trial juries may be composed of as few as six citizens) were understood, in both Britain and the colonies, to be important bulwarks of freedom from tyranny.

Few in the modern era would espouse such a view. The former Chief Judge of the New York Court of Appeals (that states highest court) famously remarked in recent years that because prosecutors agents of the executive branchcontrol what information a grand jury hears, any grand jury today would, if requested, indict a ham sandwich. While this is a useful exaggerationthe Supreme Court has held that federal grand juries need not adhere to trial rules of evidence, or be told of evidence exculpating the defendantfew prosecutors, fortunately, are interested in indicting ham sandwiches! Rather, the greatest advantage grand juries now provide (at least in federal courts, which are not as overburdened as state courts) is allowing the prosecutor to use the grand jury as a pre-trial focus group, learning which evidence or witnesses are especially convincing, or unconvincing.

At least in federal court, grand juries are here to stay. The institution is written into the Fifth Amendment too clearly to be interpreted away. Moreover, neither pro-law enforcement forces (for obvious reasons) nor allies of those accused (because occasionally grand juries do refuse to indictin the legal parlance, returning a no true bill) have reason to urge their abolition through amendment of the Constitution.

Double Jeopardy Protections

The Fifth Amendments second procedural protection is the Double Jeopardy Clause, which provides: [N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb. The Clauses core purpose is straightforward: to prohibit the government from forcing a person to undergo repeated trials for the same crime. As Justice Black explained in an oft-quoted passage in Green v. United States (1957), [t]he underlying idea . . . is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense . . . .

While the Double Jeopardy Clauses underlying principle is straightforward, the Clause has spawned complex jurisprudence. The current rule, set forth in cases such as Crist v. Bretz (1978), is that jeopardy begins, or attaches, in a jury trial when the jury is empaneled and sworn. Much of the double jeopardy jurisprudence addresses circumstances in which re-prosecution is either permitted or barred after jeopardy has attached. One common situation where this question arises is when the government seeks a retrial after a mistriala trial terminated before a final judgment is reached. If the defendant consented to the mistrial, retrial is permitted. But an early Supreme Court case, United States v. Perez (1824), established that even without consent, the defendant may be retried as long as declaring a mistrial was a manifest necessity. In Perez, the manifest necessity was a hung jurya jury that could not agree upon a verdict. While the term necessity might imply a nearly impossible burden for a retrial, the Supreme Court has been fairly generous in recognizing such circumstances. On the other hand, retrial is not permitted after an acquittal, a finding that the defendant is not guilty. Although it has not addressed the rare situation where a jury has been bribed, the Supreme Court has made clear that the Double Jeopardy Clause flatly bars re-prosecution for the same offense. Controversially, this absolute bar applies even where the acquittal was the result of erroneous trial court rulings. (As a result, in federal and most state courts, the prosecution is able to take an immediate appeal of a pre-trial ruling suppressing evidence, before the jury is empaneled and jeopardy attaches.) To justify this approach, the Court has drawn analogies to the common law plea of autrefois acquit (formerly acquitted) and expressed concern that the Government, with its superior resources, not be permitted to wear down a defendant.

The rules for re-prosecution following a conviction are different. An 1896 decision, Ball v. United States, recognized an exception to the general prohibition against re-prosecuting someone who has already been convicted: when the convicted person has managed through an appeal to overturn the conviction (on grounds other than insufficiency of evidence, which is equivalent to an acquittal by the appellate court). In later decisions, the Court has explained that this exception rests on considerations related to the sound administration of justice. Society should not have to bear the burden of having a guilty defendant set free because a conviction is overturned for procedural error, such as erroneously admitted evidence or faulty jury instructions. And defendants, too, may benefit, as appellate courts might not zealously protect against errors if the price of reversal is irrevocably setting a defendant free.

To the general public, perhaps the most mysterious line of double jeopardy jurisprudence is the dual sovereignty doctrine. Under this doctrine, a defendant can be prosecuted twice for what appears to be the same crimeonce by federal authorities and once by state authorities, or even by two different states if they both have jurisdiction over the criminal conduct. In the Rodney King case, for instance, Los Angeles police officers were re-prosecuted for the beating of Rodney King and convicted of federal civil rights violations after having been acquitted in state court of the same beating. In such situations, the Courts theory has been that a defendant is not being prosecuted twice for the same offence, but rather for separate offenses against the peace and dignity of both sovereigns and thus may be punished by both. Strong policy arguments can be made in favor of the Courts interpretation, as it prevents, for instance, a state from barring federal civil rights charges through bungling (or, worse, sabotaging) the initial state prosecution. Likewise, a person who has committed a serious crime will not be able to effectively immunize herself against prosecution by another sovereign for that offense by convincing local or state officials to let her quickly plead guilty to a minor, lesser offense.

As a matter of original meaning, however, the Courts dual sovereignty jurisprudence is highly questionable. When the Bill of Rights was adopted, the double jeopardy principle was understood as providing inter-sovereign protection. The dual sovereignty doctrine may illustrate a situation where an original meaning interpretation of the Constitution provides greater protection for criminal defendants than does a more policy based approach. In addition, one might argue that the Fourteenth Amendment, understood to have applied double jeopardy protections against the states, also is a source of authority for the federal government to vindicate civil rights by means of re-prosecution in situations like the Rodney King casebut this would not justify the Courts allowance of dual state prosecutions.

Privilege Against Compelled Self-Incrimination

The third procedural protection in the Fifth Amendment is the right not to be compelled in any criminal case to be a witness against oneself. This right is often referred to as the Fifth Amendment Privilege or, more colloquially, as the right to take the Fifth. The Supreme Court has many times affirmed the most natural understanding of these words: the defendant in a criminal case cannot be compelled to testifythat is, she cant be called to the stand and thereafter be held in contempt of court (usually leading to immediate imprisonment) if she refuses to answer questions relevant to the charges against her.

But over the years, the Court has read into these words many additional rights, both inside the criminal courtroom and in settings far removed from criminal court. In Griffin v. California (1965) the Court struck down a California rule of evidence that allowed the jury in a criminal case to consider as evidence of guilt the defendants failure to testifyhis silence in the face of the evidence the prosecution had introduced against him. The reasoning was that if the jury could draw a negative inference from the defendants silence, this could induce a defendant who preferred not to testify to decide nonetheless to take the stand, at least where the defendant thought that his testimony would be less damaging than his complete silence. While knowing that the jury could draw a negative inference is not being legally compelled in the way that being held in contempt is, the Court implied that the true purpose of the Fifth Amendment Privilege is not only to protect a criminal defendant from compelled self-incrimination, but also to ensure that no one is made worse off by asserting the Fifth than by not asserting it.

The idea that taking the Fifth should not lead to any penalty took hold in settings outside the criminal courtroom as well. In a series of cases in the late 1960s and 1970s, the Supreme Court held that the government as employer may not condition continued employment on cooperation in the investigation of possible violations of its policies (though private employers routinely do this without any constitutional limitation). For instance, in Gardner v. Broderick (1968), the New York City Police Department was held to have violated the Fifth Amendment rights of a police officer when it fired him after he refused to waive the Privilege and testify before a grand jury that was investigating police corruption. Many observers think the better approach in these cases would have been to hold that continued public employment (or an occupational license) may be conditioned on providing pertinent information (after all, there is no constitutional right to be a police officer or a licensed attorney), but that the individual has a right to assert the Privilege in any governmental investigation related to her public employment or occupational license.

Indeed, it has long been understood that the Fifth Amendment Privilege can be asserted by any witness (not just the defendant) in a criminal trial, and by any witness in a civil trial, grand jury, legislative hearing, or other government proceeding. In effect, the words in any criminal case in the Fifth Amendment have been understood not to refer to the type of proceeding where the Privilege may be asserted, but as short-hand for the idea that a witness should not be required to give responses that could be used against him in a present or future criminal case. Given its broad applicability, the Privilege is commonly referred to as the right against compelled self-incrimination. Importantly, however, whereas the jury in a criminal case cant hold the defendants failure to testify against her in any way (according to Griffin), the fact-finders in these other settings are permitted to draw a negative inference from the witnesss assertion of the Privilege. While the Privilege may thus be invoked by any witness, the government can defeat the Privilege and require that the witness testify (under pain of contempt) by granting the witness immunity. Except for a perjury prosecution, neither the witnesss immunized statements nor any evidence deriving from those statements may be admitted against her in a criminal prosecution. Kastigar v. United States (1972).

The most important, and controversial, decision applying the Fifth Amendment Privilege outside the criminal trial is Miranda v. Arizona (1966). In order to protect criminal suspects from not only physical brutality but also informal compulsion that is inherent in custodial interrogation, the Supreme Court in Miranda devised a set of warnings that the police must give before custodial questioning takes place. The individual must be told that she has a right to remain silent, that any statements she makes may be used against her, and that she has the right to have an attorney present during questioning, including the right to a court-appointed attorney if she cannot afford one. The Court recognized that an individual could knowingly and intelligently waive these rights. Critically, the Court fashioned an exclusionary rule to enforce the right to Miranda warnings: unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against the defendant at trial.

Some heralded Miranda as a better way to regulate police interrogations than the due process approach the Supreme Court had forged during the previous three decades. In Brown v. Mississippi (1936), a deputy sheriff leading a mob of white men had obtained confessions from two black defendants by sustained and brutal lashings using a leather strap with buckles on it. This clearly constituted compulsion, but the Fifth Amendment Privilege had not yet been applied against the states though the Fourteenth Amendments Due Process Clause. (That would not come until Malloy v. Hogan (1964).) So the Court invoked the Due Process Clause directly, holding that confessions were involuntary and their admission at the mens trial violated their due process rights. In the view of some justices, however, the subjective totality of the circumstances test the Court developed to determine whether a defendants confession was involuntary was unwieldy. And it provided murky guidance for both lower courts and law enforcement, especially in cases with no physical coercion. Miranda, in the view of its supporters, seemed to provide a clear line-in-the-sand for everyone. Although the Court made clear that even if Miranda was followed, a confession might be inadmissible on due process/voluntariness grounds, in fact both the Supreme Court and lower courts have tended to consider a statement presumptively voluntary if made after waiver of Miranda rights.

Miranda was controversial for many reasons. The most serious charge was that whether or not the warnings were good policy, the decision was illegitimate: the Court had just made up a new rule, nowhere found in the Constitution. To be sure, there is much circumstantial evidence that the Fifth Amendment Privilege was adopted in part to constitutionalize a common-law maxim that both British citizens and their American counterparts thought fundamental: nemo tenetur prodere seipsum (no one is bound to accuse himself). In the late eighteenth century, this was understood to forbid extracting confessions by means of physical or spiritual coercion; the latter consisted of forcing a person to take an oath to God and state the truthundoubtedly coercive in a highly religious society. But nearly two centuries later the Supreme Court was saying that the Fifth Amendment also prohibited the assertedly inherent coercion that exists in routine station-house questioning, unless Mirandas warnings are given and waived. Most pointedly, the warnings themselves looked more like legislative rule-making than constitutional interpretation. The Court, in Miranda and two other cases decided shortly before Miranda, seemed bent on reducing, if not eliminating, an important tool of evidence-gathering in criminal casesquestioning the defendant upon arrest. After all, who wouldnt leap at the chance to have a lawyer before dealing with the police? And no lawyer would allow a client to submit to immediate questioning, as all of the justices knew.

In fact, Miranda has not prevented people from making incriminating station-house statements, as initially some of its detractors had feared and some of its supporters had anticipated. It appears to be an aspect of human nature that many recently accused persons are eager to talk their way out of trouble. Mirandas critics, however, believe that Miranda has noticeably reduced the number of confessions by allowing suspects to lawyer up rather than face questioning; while Mirandas supporters contend that any reduction in confessions is quite modest, and note that police officers have learned to live with the decision.

In a series of subsequent decisions, the Supreme Court gave further ammunition to those who considered Miranda to be nothing more than judicial legislation, by creating exceptions to the broad exclusionary rule the decision had announced. In Harris v. New York (1971), the Court held that even if Miranda was violated, any voluntary statements could be admitted to attack the defendants credibility if the defendant took the stand. In New York v. Quarles (1974), the Court held admissible the defendants statement, obtained without Miranda warnings, as to where he had hidden his gun in a supermarket, because of the public safety need to secure the weapon immediately. Quarles created a potentially large loophole and undercut the constitutional basis for Miranda, as the Court said that there was no actual coercion in that case even though Miranda warnings werent given. That same year, the Court held in Michigan v. Tucker (1974) that Mirandas exclusionary rule applied only to the defendants statements, not to testimony by other witnesses whom the police discovered on the basis of the defendants statements. Ten years later the Court held that that statements elicited in violation of Miranda could be used in deportation proceedings. The Court also cast doubt on the scope of the right to remain silent, holding in Fletcher v. Weir (1982) that states could adopt rules allowing the defendants silence after arrest but before receiving Miranda warnings, to be used to attack his credibility.

It appeared to many that Miranda would in due course be overturned. Quarles had referred to Miranda warnings as merely prophylactic, and Tucker had conceded that the warnings were not themselves rights protected by the Constitution. In 1999, the Fourth Circuit agreed with the latter statement, and applied a little-noticed statute that Congress had enacted in 1968 in response to Miranda, under which a confession . . . shall be admissible in evidence [in federal court] if it is voluntarily given. 18 U.S.C. 3501(a). The Supreme Court reversed, 7-2, holding that Congress was without authority to enact 3501(a); despite language in Quarles and Tucker, Miranda had indeed announced a constitutional rule. Dickerson v. United States (2000).

Even in the wake of Dickerson, however, the scope and status of Miranda remain unclear. In Chavez v. Martinez (2003), four justices squarely held that violation of Miranda is not a violation of the Fifth Amendment Privilege, which only prohibits the government from admitting compelled statements in a subsequent prosecution of the suspect. Two other justices, concurring, distinguished between this core prohibition and extensions such as Miranda. The Court has also further cut back on Mirandas exclusionary rule, holding in United States v. Patane (2004) that as long as the defendants statements were voluntary, any physical fruits of them are admissible. And in Salinas v. Texas (2013), the Court further equivocated on the right to silence: it was proper to admit the defendants silence during police questioning that took place when the defendant was not in police custody, despite the absence of Miranda warnings, and the defendant had waived the Privilege by failing to affirmatively assert it.

Mirandas future remains uncertain. While the waiver and warning requirement has seemingly become entrenched in American police practices, the decisions approach to regulating police questioning still draws fire from all quarters. Critics of police questioning believe that the Miranda line of cases does not go far enough, because it has permitted psychological tricks and other aggressive tactics so long as an officer obtains a Miranda waiver at the start. Supporters of broader questioning counter that Miranda is perverse public policy, since career criminals are most likely to lawyer up while the vulnerable and the innocent are most likely to waive their Miranda rights. As a result, considerable interest remains in alternatives (or supplements) to Miranda, such as a requirement that police officers record interrogation sessions.

Paul Cassell Ronald N. Boyce Presidential Professor of Criminal Law, College Of Law, University of Utah Kate Stith Lafayette S. Foster Professor of Law at Yale Law School

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Amendment V - The United States Constitution

5th Amendment – constitution | Laws.com

Posted on November 20, 2018 by Dook Domini

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

Annenberg Classroom – Fifth Amendment

Posted on November 20, 2018 by Dook Domini

Fifth Amendment - The MeaningGrand 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.

Stormy Daniels’ lawyer pushes back on Cohen’s ‘blanket …

Posted on November 6, 2018 by Dook Domini

Daniels' lawyer, Michael Avenatti, is responding to Trump attorney Michael Cohen's request Wednesday to plead his Fifth Amendment rights against self-incrimination in the Daniels lawsuit over her alleged affair with Trump because of the ongoing criminal investigation he faces in New York.

Cohen's request was an attempt to stop a lawsuit over a hush agreement he made with Daniels over the alleged 2006 encounter with Trump.

Cohen told the California court earlier this week that the FBI seized electronic devices and records related to his hush payment to Clifford in raids earlier this month.

In his response, Avenatti wrote that Cohen's lawyers "offer a skeletal declaration from Michael Cohen asserting an across-the-board, blanket refusal to answer any questions.

"But such blanket claims of Fifth Amendment privilege are expressly prohibited by law," he argued.

Avenatti also wrote that other witnesses could testify in the California case, and that would allow it to go forward without Cohen's testimony about certain topics. Avenatti says other potential witnesses include the bank that executed the payment to Daniels, Daniels' former attorney Keith Davidson, Cohen's wife and others.

Avenatti did not name the President as a potential witness in the lawsuit, though Trump is one of the parties being sued in addition to Cohen.

Avenatti also used Cohen's and Trump's own words to make the point that Cohen shouldn't be able to take the Fifth. Daniels' lawyer cited an interview Cohen gave to CNN in which he said his payments to Daniels, whose real name is Stephanie Clifford, were "perfectly legal." He also pointed to Trump's assertions Thursday morning that Cohen did "absolutely nothing wrong" related to the $130,000 payment to Clifford.

The judge in California, James Otero, indicated earlier this week he would look at whether "less drastic means or measures" than stopping the lawsuit from going forward are possible. The judge may also consider separating Daniels' complaint that Cohen defamed her from a complaint against Trump and a shell company Cohen used regarding the hush agreement.

Cohen was in court in Manhattan on Thursday. Cohen's lawyers and an independent attorney in New York are reviewing the documents to block any that might fall under attorney-client privilege from prosecutors. The criminal investigation involves the Daniels payment, which Cohen made weeks before the 2016 presidential election, and several other business matters.

Avenatti, speaking on CNN's "Anderson Cooper 360" Thursday evening, said he believes Trump's statements on Fox strengthen their case and raises discrepancies in the claims put forward on Trump and Cohen's side.

"I think the President is making it up as he goes along," Avenatti said. "I think Michael Cohen has made it up as he has gone along, and this is what happens."

CNN's Eli Watkins contributed to this report.

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Stormy Daniels' lawyer pushes back on Cohen's 'blanket ...

Amendment V

Posted on July 13, 2018 by Dook Domini

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.

The final phrases of the Fifth Amendment established the limitations on the principle of eminent domain. In the 20th century, the Fifth Amendment became most noted for its prohibition of forced self-incriminating testimony, and "I plead the Fifth" became a catchphrase for the amendment.

This application of the amendment is, however, uncontroversial and has not figured prominently in Supreme Court decisions. Much less clear is the meaning of the due process provision. A century ago, it was often argued that the Fifth Amendment prohibition against depriving an individual of liberty meant that the right to enter into contracts, which represents a liberty, is infringed when government regulations fix such things as minimum wages. This interpretation of due process has generally fallen out of favor.

Ratified in 1791

See Table of Amendments.

What Does the Sixth Amendment Mean? To Whom Does it Apply?, Gideon v. Wainwright, Landmark Supreme Court CasesHe thought that amendment was one of the most important amendments. Others disagreed with him, arguing that because many state constitutions had their own Bills of Rights, it would not be necessary to protect citizens from abuse at the hands of ...http://www.landmarkcases.org/gideon/sixth.html

ARTICLE VState, 99 Nev. 149, at 150, 659 P.2d 878 (1983), State v. Eighth Judicial Dist. Court, 100 Nev. 90, at 104, 677 P.2d 1044 (1984), dissenting opinion, Kelch v. Director, Dept of Prisons, 10 F.3d 684, at 686 (9th Cir. 1993), Wicker v. State, 111 Nev. http://www.nevada-history.org/article_5.html

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Amendment V

Amendment V – United States American History

Posted on July 2, 2018 by Dook Domini

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.

Ratified in 1791

See Table of Amendments.

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

Posted on August 24, 2017 by Dook Domini

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.

What Mental Health Experts Can Say About The Presidency – HuffPost

Posted on August 24, 2017 by Dook Domini

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.

What Mental Health Experts Can Say About The Presidency - HuffPost

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

Posted on August 20, 2017 by Dook Domini

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.

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

Posted on August 19, 2017 by Dook Domini

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)

Posted on August 18, 2017 by Dook Domini

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.

Continued here:

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)

Posted on August 18, 2017 by Dook Domini

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

Posted on August 16, 2017 by Dook Domini

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.

Original post:

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

Posted on August 16, 2017 by Dook Domini

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

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