Category Archives: Fifth Amendment

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When the Supreme Court overruled Roe v. Wade (pdf), most of the outrage came from those who believe the U.S. Constitution protects abortion rights. However, a few argued that the Constitution mandates a national standard forbidding abortion.

This essay explains why those who claim the Constitution forbids abortion are as much in error as those who think it legalizes abortion.

I have a long history of advocating for pro-life causes. But theres a difference between my political preferences and what the Constitution actually says. Respecting what the Constitution actually says is key to the rule of lawnecessary, in turn, for a free society. If we disagree with the Constitution, we should work to amend it. We should not fall into the lefts corrupt practice of pretending the Constitution says what it doesnt.

The arguments for the view that the Constitution bans abortion have been set forth as follows:

First: Its a scientific fact that humanity begins at the moment of conception.

Second: A human being is therefore a person as the Constitution uses the term.

Third: The Constitutions Fifth and the 14th Amendments each contains a Due Process Clause stating that no person shall be deprived of life without due process of law.

Fourth: Just as slavery was a national moral issue rather than a states-rights issue, abortion also is an issue of national morality.

Lets examine each of these arguments.

The essence of the Roe decision was that it was unconstitutional for a state to protect an unborn child, against the wishes of the mother, before the child could survive outside the womb. Although the court purported not to decide when human life begins, its ruling assumed that a fetus necessarily dependent on the mother is only potentially human.

This ruling was absurd: Ones humanity isnt solely a function of dependence or independence. If it were, then Americas large dependent population would be deemed non-human. Roes absurdity illustrates that judges are unequipped to make decisions of this kind.

But the fact that humanity isnt solely the result of independence doesnt prove that its solely the result of conception either. Exactly when life becomes human is a subject on which reasonable and informed people disagree. Some would place the critical moment at the time of conception; others at the time when cells differentiate from each other, or at the time of implantation, or when (and if!) the brain begins to function, or when the fetus has a heart, or when the soul enters the body. Science offers plausible answers and rules out implausible ones, but it doesnt give us the answer.

In this respect, the question of when humanity begins resembles the question of when it endsthat is, when death occurs. Theres a point in time when we can say a person is definitely alive and a point when we can say a person is definitely dead, but theres often a twilight zone between the two. To a lesser extent, the question of when humanity begins resembles the issues of when a person ceases to be a child and becomes an adult, or is mentally competent or incompetent.

In a democratic society, the answers to such questions are provided by the peoples freely elected representatives, acting under spiritual, scientific, and popular guidance. When legislatures delegate discretion to physicians and other providers (as they often do), they still impose legal guidelines.

Admittedly, decisions of this kind can be difficult. However, their difficulty argues for their being products of an open, democratic, and deliberative process. Not the results of abstract reasoning or judicial decree.

The Fifth Amendment forbids the federal government from depriving any person of life without due process of law. What does person mean?

In daily discourse, we often use person interchangeably with human being. This is not necessarily true in legal language, however. Some traditional legal systems have denied personhood to certain classes of human beings, such as slaves or foreigners. Our own legal system grants personhood to corporations, which arent human beings at all, but rather formally organized collections of human beings.

In 1791, when the state legislatures ratified the Fifth Amendment, the American legal system recognized all born human beings, even slaves, as persons. But it didnt recognize the unborn as fully human. And it certainly didnt recognize the unborn as legal persons.

Applying the Fifth Amendment to include the unborn within its word person would require changing the meaning of the amendment as its ratifiers understood it. More on that below.

When the state legislatures ratified the 14th Amendment in 1868, knowledge of fetal development was far more advanced than in 1791. Accordingly, most states had instituted some legal protection for the unborn.

But granting some legal protection didnt mean that lawmakers believed the unborn were fully human, much less persons. (Lawmakers also grant legal protection to animals and forests, for example.) Although the legislative and public debates over the amendment discussed the personhood of ethnic minorities and women, no one seems to have added fetuses or embryos to the list. And in the years after 1868, laws were passed and lawsuits filed to protect the 14th Amendment rights of ethnic minorities and womenbut not the unborn.

This and other evidence forces the conclusion that the 14th Amendments term person doesnt include those yet unborn.

You might respond by saying, Whatever the opinion was in 1791 and 1868, we now know that the unborn are human and, therefore, ought to be legal persons. So lets extend the two Due Process Clauses to them.

Of course, this line of argument reeks of the unprincipled living constitutionalism most conscientious Americans reject. But theres an even bigger problem with it: Even if we interpret person in the Fifth and 14th Amendments to include embryos and fetuses, most abortions would remain unaffected.

The Fifth Amendment Due Process Clause prevents the federal government from taking life, liberty, or property without following pre-set procedures. The 14th Amendment extends the same restriction to state governments. But the two amendments apply solely to governmentsnot to transactions by private parties, such as the typical abortion procedure. In this respect, the Fifth and 14th Amendments are unlike the 13th (abolishing slavery): The 13th applies both to governments and to private individuals; the Fifth and 14th apply only to governments.

In constitutional law, the rule excluding private conduct from the Fifth and 14th amendments is called the state action doctrine. The state action doctrine protects federalism and prevents officials and judges from using the amendments to restrict individual freedom.

In sum, as Justice Samuel Alito pointed out in Dobbs v. Jackson Womens Health (pdf)and as the late, great Justice Antonin Scalia said repeatedlythe Fifth and 14th Amendment Due Process Clauses really have nothing to do with abortion.

I have seen one writer argue that Abortion is no more a states rights issue than slavery was in the mid-19th century.

However, the writer got the history wrong. Slavery was a moral issue, but it also was very much a matter of states rights. Even most anti-slavery activists acknowledged this. Abraham Lincoln, for example, agreed that states could maintain slavery within their own borders indefinitely. What Lincoln contended was that Congress should adopt a law abolishing slavery within federal territories.

Slavery ceased to be a states-rights issue only when Americans passed a constitutional amendment abolishing it. Similarly, those seeking to end abortion in our country will have to obtain a constitutional amendment to do so. The present Constitution will not do it for them.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

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Robert G. Natelson, a former constitutional law professor, is senior fellow in constitutional jurisprudence at the Independence Institute in Denver.

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Understanding the Constitution: Why It Doesn't Protect the Unborn - The Epoch Times

Former President Donald Trump's children, Donald Jr. and Ivanka, have testified before investigators with the New York attorney general's office looking into the Trump Organizations finances and whether the firm inflated or deflated real estate valuations to suit its interests, two sources close to the investigation confirmed to NBC News Thursday.

Donald Trump Jr. testified last week, the sources said. Ivanka Trump testified Wednesday, they said. According to a source, neither of them ever invoked their constitutional fifth amendment right. It wasn't clear if the meetings were held in person.

The depositions had been expected to be completed last month but were delayed by the death of their mother, Ivana Trump. A spokesperson for New York Attorney General Letitia James' office offered condolences at the time in announcing the delay.

Donald Trump Jr. and his brother, Eric, lead the Trump Organization. Eric Trump pleaded the Fifth when he was deposed by video in October 2020. He did so more than 500 times, according to a January court filing from James' office. Ivanka Trump was once a top Trump Organization executive and later served as senior White House adviser while her father was in office.

Her mother, Ivana Trump, died July 14 at her East 64th Street townhouse. Her death was ruled accidental. The medical examiner ruled her death an accident and said she died of blunt impact injuries to her torso. The office declined further comment, but a senior official with direct knowledge of the matter said the circumstances were consistent with a fall down the stairs and there was no indication of foul play.

Ivana Trump was remembered at a funeral at St. Vincent Ferrer Catholic Church earlier this month. Her burial, though, has now become a story of its own. Learn more here.

Wednesday's early afternoon service is invitation-only and being held at St. Vincent Ferrer Catholic Church on Lexington Avenue, between 65th and 66th streets, on the Upper East Side, a source in the Trump family told NBC News.

Donald and Ivana Trumps three children Donald Jr., Ivanka and Eric and their families followed Ivanas gold-colored coffin into St. Vincent Ferrer Roman Catholic Church on Manhattans Upper East Side. The patriarch himself reportedly arrived 10 minutes later.

The former president's children, their spouses and children stood in line outside the church after they arrived and they somberly waited for white-gloved pallbearers to carry Ivana Trump's casket from the hearse into St. Vincent.

A very sad day, but at the same time a celebration of a wonderful and beautiful life," the ex-president wrote on his social media platform, Truth Social, before heading to the Mass with his current wife, former first lady Melania Trump.

Tiffany Trump, the daughter of the former president and his second wife, Marla Maples, also attended the service, as did family friends including Jeanine Pirro, co-host of Fox News' The Five, and Charles Kushner, a real estate developer and the father of Ivanka Trump's husband, Jared Kushner. Fashion designer Dennis Basso, a longtime friend of Ivana Trump's, was also among the mourners.

The Mass was an elegant, wonderful send-off for Ivana Trump, longtime friend R. Couri Hay said as he emerged.

A Czech-born ski racer and sometime model, Ivana Trump married the future president in 1977, and became a businesswoman. She and Trump formed a publicity power couple in the 1980s, and she was the mother of his oldest children.

I am very saddened to inform all of those that loved her, of which there are many, that Ivana Trump has passed away at her home in New York City, Trump posted on his social media app, Truth Social. She was a wonderful, beautiful, and amazing woman, who led a great and inspirational life. Her pride and joy were her three children, Donald Jr., Ivanka, and Eric. She was so proud of them, as we were all so proud of her. Rest In Peace, Ivana!

Their children also released a statement, calling her "an incredible woman a force in business, a world-class athlete, a radiant beauty and caring mother and friend. Ivana Trump was a survivor.

She fled from communism and embraced this country, the statement continued. She taught her children about grit and toughness, compassion and determination. She will be dearly missed by her mother, her three children and 10 grandchildren.

She became an icon in her own right, dripping with 80s style and elegance, complete with her signature beehive hairdo. She influenced the look of the over-the-top Patsy Stone in the classic British sitcom Absolutely Fabulous, with the character extolling Ivana as tremendous in one episode.

Trump herself would eventually appear in the 1996 hit film The First Wives Club with the now-famous line, Ladies, you have to be strong and independent, and remember, dont get mad, get everything.

The Trumps became partners in love and business, with Ivana playing roles such as manager of one of his Atlantic City casinos. She worked tirelessly there and also had a hand in making Trump Tower an image of 80s success, helping the decorator and taking a strong interest in such details as the doormens uniforms, said Barbara Res, a former Trump Organization executive who was in charge of the skyscrapers construction.

She did all that to impress Donald, to win his approval. She was traveling back and forth all the time, and leaving her kids. She had a tremendous work ethic.

The two were fixtures of New York's see-and-be-seen scene before their equally public, and messy, 1992 divorce. Donald Trump had met his next wife, Marla Maples.

During the split, Ivana Trump accused him of rape in a sworn statement in the early 1990s. She later said that she didnt mean it literally, but rather that she felt violated.

Donald Trump would say at times that he regretted having Ivana join him in business and blamed it for the unraveling of his marriage.

I think that putting a wife to work is a very dangerous thing, he told ABC News in the early 90s. If youre in business for yourself, I really think its a bad idea to put your wife working for you, he said, complaining that when she turned into a businessperson, a softness disappeared.

Nevertheless, Ivana ultimately remained friendly with her ex-husband, whom she famously called The Donald. She enthusiastically backed his 2016 White House run, saying he would make big changes in the United States, andtold the New York Postthat she was giving him suggestions on his campaign.

We speak before and after the appearances and he asks me what I thought, she said. She said she advised him to be more calm.

But Donald cannot be calm, she added. Hes very outspoken. He just says it as it is.

Ivana Trump, a skier-turned-businesswoman who formed half of a publicity power couple in the 1980s as the first wife of former President Donald Trump and mother of his oldest children, has died in New York City. NBC New York's Ida Siegal reports.

However supportive, she occasionally ruffled feathers.

In 2017, while promoting a book, she told Good Morning America that she spoke with the then-president about every two weeks and had his direct White House number, but didnt want to call to frequently because Melania is there and I dont want to cause any kind of jealousy or something like that because Im basically first Trump wife, OK? she said with a laugh. Im first lady, OK?

Melania Trumps spokesperson at the time responded, saying there was clearly no substance to this statement from an ex, this is unfortunately only attention-seeking and self-serving noise.

Ivana Trump had continued her business ventures in recent years, promoting an Italian weight-loss diet in 2018.

Health is the most important thing we have. Lets keep it that way, she said at the time.

Ivana Trump's death came during a fraught week for the Trump family. Two of her children, Donald Jr. and Ivanka, and the former president are due to appear in coming days for questioning in the New York attorney general's civil investigation into the familys business practices.

Ivana Trump was born Ivana Zelnickova in 1949 in the Czechoslovak city of Gottwaldov, formerly Zlin, which had just been renamed by the Communists who took over the country in 1948.

She was married four times, most recently to Italian actor Rossano Rubicondi. The two divorced in 2009 after a year of marriage but continued to see each other off and on until 2019, when she told the New York Post the relationship had run its course. He died last year of cancer at 49.

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Sources: Donald Trump Jr., Ivanka Testify Before NY AG's Office in Finance Probe, Neither Pleads the 5th - NBC New York

Published: 8/5/2022 3:48:02 PM

Modified: 8/5/2022 3:44:55 PM

GREENFIELD A Level 3 sex offender apprehended in Florida in April 2021, a month after being added to the Massachusetts State Polices list of most-wanted fugitives, demanded a new attorney following motion hearing on Friday.

Jeffrey Cancel-Muniz, 42, formerly of western Massachusetts, appeared in Franklin County Superior Court and was the only party involved with his case who was physically present in the room. Judge Karen Goodwin appeared via Zoom, as did Assistant District Attorney Sandra Staub and defense attorney Thomas Glynn. The hearing concluded with Goodwin and the two attorneys agreeing to schedule a status conference for Aug. 26.

I want my lawyer to withdraw from my case, Cancel-Muniz said as court officers led him away before the Zoom feed ended.

He was last in court for a motion hearing in June, when Judge Mark Mason decided two witnesses in the case would not have to testify at trial. Mason spoke with both individuals, who invoked their Fifth Amendment privileges to not incriminate themselves on the stand. One of the individuals is the complaining witness against Cancel-Muniz, who faces charges of strangulation or suffocation, kidnapping, rape and aggravated rape as a result of a sexual assault that allegedly occurred in Deerfield in May 2020.

On Friday, however, Staub reported one of the witnesses is willing to waive Fifth Amendment privileges. Glynn said this was the first time he was hearing this. Goodwin asked Glynn if he would be ready to go to trial earlier than the planned November date; he replied that he would have to check his schedule.

Glynn also mentioned he had not received an unredacted transcript of an audio interview a Deerfield Police detective conducted with an informant at the Franklin County Jail and House of Correction in Greenfield. Staub explained to Glynn and Goodwin she gave the transcript to Isaac Mass, Cancel-Munizs previous attorney, and I will make sure that you have that as well, counsel.

Cancel-Muniz was arrested in Florida in April 2021 after a hotel clerk had an issue with him, searched his name online and saw his face on a poster the State Polices Violent Fugitive Apprehension Section had released to news media outlets. Deputies with the Osceola County Sheriffs Office responded to the Travelodge Suites by Wyndham Kissimmee Orange after the lodging facility notified them that Cancel-Muniz was a guest there, according to a statement from Massachusetts State Police spokesperson David Procopio at the time. Deputies verified the warrants against Cancel-Muniz and arrested him as a fugitive from justice.

Reach Domenic Poli at: dpoli@recorder.com or 413-772-0261, ext. 262.

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Former fugitive charged with rape in Deerfield case demands new lawyer - The Recorder

The prosecutor is asking the judge to question Catherine Hoggle's competency himself, despite the doctor's opinions that she is "profoundly mentally ill."

ROCKVILLE, Md. The Montgomery Countys States Attorney told a judge Thursday he wants to put a mom accused of killing her own kids more than seven years ago on the witness stand so the judge can determine for himself if she is competent to stand trial.

In the seven years since Sarah and Jacob Hoggle went missing at the age of two and three, their mother, Catherine Hoggle, has been declared incompetent to stand trial 20 times. Catherine Hoggle currently remains in a state mental hospital, and her lawyer alleges she is "profoundly mentally ill."

Maryland law says Catherine Hoggle either has to go on trial by December 2022, or the murder charges have to be dropped. Prosecutors fear that without criminal charges to hold her, she could eventually be released from the hospital without facing accountability for the alleged murders.

Montgomery County States attorney John McCarthy asked Judge Richard Jordan to question Hoggle himself.

"It's not the medical decision, it's a legal determination," McCarthy said. "The person who has the legal authority to make this decision is the judge, not the doctors."

Judge Jordan, whos been brought out of retirement to hear the case, said in court that he was not prepared to put Hoggle on the stand during the Thursday hearing. Her lawyer warned that he would advise Hoggle to assert her fifth Amendment rights and refuse to be questioned. But McCarthy said in a matter of mental competency the judge could compel Hoggle to answer questions.

Jordan scheduled another hearing for October and asked for both sides to bring witnesses including doctors.

Meanwhile, supporters of the children's father, Troy Turner, staged a demonstration outside the Montgomery County Circuit Court in Rockville saying justice delayed is justice denied.

"As far as her talking, as long as she's comfortable, there's no reason for her to," Turner said. "She is someone who has killed two children and she's sticking to her story. That doesn't show that she's delusional, it shows that she is a murderer sticking to her story."

Turner and his supporters said a murder trial would not only mean accountability for Catherine Hoggle, but it might force her to give up her secrets. Despite years of searching, the two children have never been found.

Prosecutors, however, maintain theres ample circumstantial evidence to convict Hoggle of murder.

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Time running out to try Catherine Hoggle for the disappearance, suspected murder of her 2 kids - WUSA9.com

Short, Jacob and Cipollone testified to the Jan. 6 select committee but negotiated strict terms to avoid discussing their direct interactions with Trump a nod to the disputed possibility that such communications could be protected by executive privilege. But its unlikely that such claims would pass muster in a criminal probe.

There is no way that any court would say they didnt have to testify to conversations with President Trump in a grand jury investigation a criminal investigation arising out of that conduct, said Neil Eggleston, who served as White House counsel to President Barack Obama and represented President Bill Clinton in several executive privilege fights. Theres no doubt if this got to a court, it would hold that the department is entitled to the information. I think its a no-brainer.

CNN reported last week that Short and Jacob declined to answer some questions before the grand jury on executive privilege grounds, as they had done during depositions conducted by the House Jan. 6 Select Committee. The panel has argued that executive privilege does not apply to nearly any conversation Trump had related to efforts to overturn the election, but the committee has opted against litigating those thorny and time-consuming issues, instead permitting cooperating witnesses including Short, Jacob, Cipollone and others to answer questions without revealing specific details of conversations with Trump that could even arguably be privileged. But Trumps suit against the panel and the National Archives was an exception to the panels general approach of seeking to avoid or delay litigation on such issues.

Pat Cipollone, former White House counsel, during an interview displayed at a hearing by the House select committee investigating the Jan. 6 attack on the U.S. Capitol, July 12, on Capitol Hill in Washington.|House Select Committee

It remains unclear whether Trump intends to formally assert executive privilege in a bid to block any testimony to the grand jury. A Trump spokesperson did not respond to requests for comments on the former presidents plans.

However, Trump is likely to be at a disadvantage in such a legal battle because of the defeats he already suffered as he tried to block the National Archives from disclosing thousands of pages of his White House records to the Jan. 6 select committee. That fight also helped the Justice Department hone arguments that may come into play in the grand jury probe encircling Trumps allies.

The department represented the National Archives in that fight, lodging extensive briefs opposing Trumps power to assert executive privilege as a former president over the objection of the sitting president, Joe Biden.

The exceptional events of January 6 amply justify President Bidens determination that assertion of the privilege is unwarranted with respect to the records at issue here, Solicitor General Elizabeth Prelogar contended in a Supreme Court brief, and [Trump] has not even attempted to offer any specific countervailing need for confidentiality.

In short, the Justice Departments grand jury investigation might benefit from Trumps repeated efforts to block investigators in the past. Even before those court rulings, the department typically had the upper hand in battles over privilege. Grand jury subpoenas are more legally potent than the congressional variety, and the Justice Department will enter any fight with Trump armed with a court-approved strategy to defeat Trumps executive privilege claims.

Judges at every level determined or acquiesced in rulings that the urgency of Congress need to investigate the Jan. 6 insurrection easily outweighed Trumps desire to maintain the secrecy of potentially privileged records.

Presidents are not kings, and Plaintiff is not President, U.S. District Court Judge Tanya Chutkan wrote in the first ruling against Trump last November. The D.C. Circuit Court of Appeals followed suit, with a 68-page opinion rejecting Trumps effort to assert privilege on multiple bases.

The January 6th Committee has demonstrated a sound factual predicate for requesting these presidential documents specifically, Judge Patricia Millett wrote for the three-member panel. There is a direct linkage between the former President and the events of the day.

The panels victory against Trump unlocked some of its most crucial evidence against the former president, including handwritten notes, call and visitor logs and speech drafts that showed the West Wing struggling to get Trump to condemn violent supporters on Jan. 6 and continue his efforts to overturn the election during and after the riot.

A separate legal fight between Trumps last chief of staff, Mark Meadows, and the Jan. 6 select committee may also bear on Trumps ability to insert executive privilege issues into the grand jury investigation. In that civil case, Meadows asserted immunity from congressional subpoenas, a power that the Justice Department has long supported for sitting presidents and their immediate advisers.

But the department had never weighed in on whether similar immunity applies to a former aide to a former president. In fact, the Justice Departments only reference to any similar scenario was to directly cite a decision by President Harry Truman to resist a subpoena from the House UnAmerican Activities Committee after he had left office, citing separation-of-powers concerns. But Trumans quote held no legal value, and the matter has never been litigated until now.

In a 17-page brief filed in Meadows case just over two weeks ago, the Justice Department for the first time said that a former aide to a former president did not have absolute immunity from compelled testimony, and that Bidens decision to waive privilege should take precedence over any attempt by a former president to assert it.

Allowing a former President to override the decisions of the incumbent would be an extraordinary intrusion into the latters ability to discharge his constitutional responsibilities, the department argued.

Meadows lawyer George Terwilliger sharply criticized the Justice Departments move, saying it elected to become an advocate for the committee and urged the court to go into untested legal waters.

White House Chief of Staff Mark Meadows speaks to reporters October 2, 2020 in Washington, D.C.|Drew Angerer/Getty Images

Some executive privilege battles litigated in civil cases have dragged out for years. One, involving a House subpoena for Justice Department documents related to the Operation Fast and Furious gunrunning investigation, stretched for seven years, from 2012 to 2019.

However, the courts tend to fast-track grand jury subpoena battles because of the priority given to criminal investigations.

The Department of Justice can get in front of a court really fast, unlike Congress, said Eggleston, the former Obama White House counsel. They can do that in a matter of days. They can work so much faster and they dont really have to negotiate.

Legal experts say the reported grand jury subpoenas to Cipollone and Philbin raise issues beyond the traditional executive privilege ones because they were, at times, giving Trump legal advice that would normally be protected by attorney-client privilege. However, in a 1998 dispute stemming from Independent Counsel Ken Starrs probe of President Bill Clintons White House, the D.C. Circuit ruled that governmental attorney-client privilege had to yield to a grand jury subpoena in the context of a criminal investigation.

The D.C. Circuit is very explicit that government attorneys do not have any greater privilege than other advisers when it comes to information they have that is relevant to a grand jury, said Ryan Goodman, a New York University law professor and co-founder of the Just Security blog. I think its highly likely that Trump will lose very quickly because theres case law in the D.C. Circuit contradicting any such claims.

One former White House lawyer for Trump, Ty Cobb, said he thought some of the recent court rulings might have been mistaken to hold that a former president couldnt assert executive privilege if the current one disagreed.

Im not sure that that is right, said Cobb, who has publicly broken with Trump and called his actions related to Jan. 6 disqualifying.

However, Cobb acknowledged that either way, current law says criminal investigators can get even information protected by that privilege if they show an urgent need and no other place to go for it.

If you tick those boxes, you can be questioned, he said. The attorney noted, though, that some witnesses might choose to invoke their Fifth Amendment rights regardless of, or in addition to, any privilege Trump might assert, and the right against self-incrimination is largely treated as sacrosanct.

The initial stages of any executive privilege fight over grand jury testimony about Trump would go to Chief Judge Beryl Howell, an Obama appointee and former Senate Judiciary Committee counsel who has repeatedly voiced outrage about the Jan. 6 attack.

Beyond that, Trumps lawyers can take the issue to the D.C. Circuit, which already snubbed him in the White House records fight, and on to the Supreme Court, which did the same.

The only outward sign of hesitation from the Justice Department on executive privilege issues is its decision last year not to bring criminal charges against Meadows and Trumps social media guru, Dan Scavino, for defying House subpoenas based on what they said were instructions from Trump.

But the departments recent backing for the House in Meadows civil suit seems to indicate that Justice Department officials are committed to their view that the stronger legal argument here is that, as a former president and because of the gravity of the Jan. 6 events, Trump cannot successfully assert the privilege to block testimony.

Indeed, some legal observers say Trumps chances of succeeding in this sort of court battle are so remote that he might not even choose to fight it out. A privilege battle that attorney John Eastman pursued in court against a House subpoena led to a judge ruling in March that Trump likely committed a crime obstruction of justice by trying to interfere with the certification of electoral votes by Congress on Jan. 6, 2021.

One potential downside for Trump if he does put up a privilege fight over the grand jury demands is a repeat of what happened in the Eastman case, with a judge or multiple judges publicly declaring that he probably broke criminal law. It wouldnt amount to a criminal charge, but would fuel public perceptions that Trump crossed the legal line in his activities trying to overturn President Joe Bidens win at the ballot box.

Theres a potential risk for Trump that a judge holds theres sufficient evidence of his engaging in criminal conduct, said Goodman, the New York University law professor, a possibility that might dissuade Trump from embarking on a quixotic legal battle to shield his advisers from testifying about their conversations with him.

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Trump faces uphill fight on executive privilege in DOJ probe - POLITICO

Charles W. Milliken| The Daily Telegram

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Peter A. Joy, Henry Hitchcock Professor of Law, School of Law, Washington University in St Louis

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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

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

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

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

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

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

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

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

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

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

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

Bruce Diven| The Monroe News

A great injustice is being perpetrated on the American people by the congressional hearings focused on bringing legal charges against former President Donald Trump. These hearings are very partisan and solely an exercise in making sure that former President Trump will be unable to gain enough support for another presidential run in 2024.

The media (who never liked Trump and were called fake news) have been willing allies in airing this prime time attack on the former president. What happened to the Fairness Doctrine of 1968? Federal Communications Commission rules stated that the Fairness Doctrine should apply to everyone.Whether you like or dislike President Trump, we have lost the balanced and fair reporting that Americans expect of our media.Shame on them and shame on the citizens of this country for not calling them out.The voters and citizens deserve better.

So lets say that I dont like you, my next door neighbor.I also have a group of other people that I find out dont like you either. If I have enough money and hate you enough, then I could buy TV air time and show video clips of you cutting off the tops of flowers at your home, kicking your dog, and putting your trash out in the street rather than on the curb.

I bet I could find a number of employees who worked at the business you ownto tell stories of the terrible things they saw at your business and get statements from the employees who were fired for no just cause. If I can spin the story over and over again linked with distasteful images, then I am able to cast doubt on your character and ruin your personal and business reputation.

Does this sound fair or legal? It is not.You have legal rights from slander and can sue me for monetary damages and/or jail time up to one year. Even in criminal cases, all Americans are able to have a lawyer and provide opposing evidence to mount a defense against your accuser. If these congressional hearings can do this to former President Trump and provide him no legal defense, then they can do this to you and me.

This isnt the first time that the U.S. government and politicians have run a similar scam on the American people. In 1938, Rep. Martin Dies, D-Texas, convened the House Un-American Activities Committee (HUAC) to investigate alleged disloyalty and rebel activities on the part of private citizens, public employees and organizations suspected of having communist ties.The committee employed several controversial methods to accomplish its goal of ferreting out suspected communists. During the hearing, the suspected communist was grilled about his or her political beliefs and activities and then asked to provide the names of other people who had taken part in allegedly subversive activities.

Any additional figures identified in this manner also received subpoenas, widening the committees probe. Individuals who refused to answer the committees questions or to provide names could be indicted for contempt of Congress and sent to prison. Subjects of HUAC investigations had the option of invoking their right to avoid self-incrimination under the Fifth Amendment, but pleading the Fifth created the impression that they were guilty of a crime. In addition, those who refused to cooperate were often blacklisted by their employers. They lost their jobs and were effectively prevented from working in their chosen profession.

HUACs tactics amounted to a witch hunt that trampled on citizens rights and ruined their careers and reputations. Most people who were called before the committee had broken no laws, but instead were targeted for their political beliefs or for exercising their right to free speech.

No matter what your feelings are regarding President Trump, these ongoing congressional hearings are a threat to every citizens right to fair and equitable treatment under the law. I have had enough … how about you?

Bruce Diven, D.P.T., of Monroe is a physical therapist and a clinical and adjunct professor with Wayne State University. He can be contacted at BCDDPT@comcast.net.

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Partisan congressional hearings are a threat to all citizens - Monroe Evening News

The Fourth Court of Appeals on Friday affirmed a lower courts decision denying the University of the Incarnate Words request to quash a wrongful death lawsuit stemming from the 2013 shooting of a student by a campus police officer.

Brent Perry, the Houston lawyer representing the family of Robert Cameron Redus, said Friday that he was pleased with the ruling, and absent something unusual happening in the next two months, the suit can proceed.

A trial is currently set for Sept. 19 in state district court in San Antonio.

We have to go to trial, Perry said. That shooting was unjustified.

RELATED: UIW says student slain by campus officer was irresponsible

Margaret Garcia, UIW director of university communications and brand marketing, acknowledged via email Friday the court had concluded that in their opinion there are factual issues which must be presented to a jury.

She added that UIW is preparing to proceed forward with the trial.

Valerie Redus (center) joined by her husband, Mickey, fights back tears while reading aloud a journal entry from her deceased son, Cameron, during a candlelight vigil to mark the three-year anniversary of his death in front of the University of the Incarnate Word on Tuesday, Dec. 6, 2016.

Redus, 23, who went by Cameron, had reached his off-campus apartment building when his pickup was stopped by Cpl. Christopher Carter, who had suspected Redus of driving drunk near the university early on Dec. 6, 2013.

Carter reported that Redus fought him when he attempted an arrest, and after a prolonged struggle in which Redus got control of his baton and struck him with it he shot the student multiple times.

The appeals panel agreed that the university could not be protected by the legal immunity afforded police officers because the question of whether Carter was acting in good faith was disputed.

The universitys previous claim to government immunity because its police department was licensed by the state was also rejected, by the appeals court and later the Texas Supreme Court, during the eight years since the lawsuit was filed.

A trial will allow Carters version of the facts to be challenged, Perry said.

A friend of Robert Cameron Redus holds a program during a Jan. 13, 2014 memorial service at the University of the Incarnate Word for Redus, a student fatally shot by a UIW officer weeks earlier.

RELATED: Appeals court says UIW cant claim immunity in Redus case

Carter knew Cameron was not armed, Perry said. His statement was false. He knew Cameron never hit him with the baton.

A Bexar County grand jury in 2014 declined to indict Carter. The parents of Redus, who lived in Baytown, filed the lawsuit that year.

The appeals court ruled that UIW was not entitled to governmental immunity with respect to the actions of its police, and the Texas Supreme Court agreed in 2020, saying that private universities do not operate as an arm of the state government through their police departments.

Following that decision, UIW filed a motion for summary judgment based on Carters qualified immunity. That motion was denied, and in affirming the ruling, the Fourth Court noted aspects of Carters story that might be disputed by a recording of the fatal encounter and because under questioning, he invoked his Fifth Amendment right against self-incrimination.

ezavala@express-news.net | Twitter: @elizabeth2863

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9 years after a UIW police officer shot student Cameron Redus, the case is going to trial - San Antonio Express-News