I was watching an interview on CNN a couple days ago regarding Trump’s flurry of pardons for his previously convicted team members.
The subject then came up about whether Trump would “pre-pardon” his inner circle [i.e.: Jared, Ivanka etc.] to preclude their future prosecution.
The expert they were interviewing said this would not happen because if (for example) Trump pre-pardoned Jared and Trump was then brought up on charges that also involved Jared, Jared would not be able to “plead the fifth amendment” since he (Jared) has no risk of being prosecuted on those charges.
Jared could then be compelled to testify against Trump and Trump would never risk that. So no inner circle pre-pardoning.
This is the first time I’ve heard that there are implications for “fifth amendment” testimony that would affect Trump’s possible pre-pardoning.
Is this actual case law or precedent etc or is it speculation?
Since the basic factual question is readily answered - Yes, a pardon lifts the Fifth Amendment protection against self-incrimination - let’s move this to Politics and Elections from GQ.
It seems that an easy end around for not pleading the 5th (or being forced to testify) is just saying that ‘You don’t recall’. Who can prove that you did or did not remember? It’s sleazy to be sure, but so is pleading the 5th IMHO.
Not sure of the legal jeopardy involved, but isn’t ‘I don’t recall’ pretty much as good as pleading the 5th? If not better? Pleading the 5th IMHO is pretty much a confession of some kind of guilt, isn’t it??
A good prosecuting attorney is ready for this. Particularly if there have been depositions beforehand and the witness has tipped their hand they they’re going to go this route, the prosecution will try to gather evidence to contradict the lack of recall – e.g. “well I have this text here referencing the events in question that you sent just last month.”
But even in the absence of such evidence, a good attorney will use careful questioning to show that the witness is being evasive or knows more than their letting on. At the very least their credibility as a witness will be in tatters, and if their testimony goes badly enough it may be enough to sustain a perjury charge.
With everyone facing jeopardy in state court prosecutions, they will all retain their 5th Amendment rights. The state prosecutors could offer them immunity, but that won’t happen for the top guys and gals.
I think he’ll pardon them all. He’s not getting any consequences for the other sleazy pardons.
Cool @flurb and @Procrustus. Guessing an honest judge would not look too kindly on the answer “I donno” when there is some previous documentation that you do know.
I can foresee the return of the good old “executive privilege” argument making a return in 2021 along with other variants of “I don’t have to answer that because I don’t think you have the right to ask” and/or “you’re only asking that because of politics”. So basically we will see a lot of this:
I’m not allowed to talk about it.
Even if I was, I wouldn’t talk about it with you.
Who are you to even ask?
Does this result in folks getting thrown in jail for contempt of court? Let’s hope.
Sorry - to be clear - you’re saying that if someone accepts a pardon then they are never allowed to “plead the 5th”? Why is that? Based on established case law or precedent?
The answers so far are based opinions of ways around pleading the 5th.
In the CNN interview, he just staled this as a “matter of fact”, which may be based on ways to get around pleading the 5th, but the interviewee stated it so definitively that I wondered if there is legal precedent.
It’s for the same reason that if the prosecution grants you immunity you cannot claim a fifth amendment right against self-incrimination. If you are immune from being criminally charged, then you cannot be “incriminated.”
Sorry, but I’m not understanding what part of this you’re not understanding.
The relevant part of the Fifth Amendment, and what is understood as “pleading the Fifth,” is:
That is, no one can be compelled to make statements that might serve to convict him of a crime.
If someone has been pardoned of a crime, that right no longer exists. They can be compelled to make statements related to that crime, that may serve to convict other people of crimes, since they cannot serve to convict the person himself of a crime.
Of course, this does not apply to other, separate crimes, and you could still plead the Fifth in relation to those crimes.
A Federal pardon does not apply to state crimes. However, if you were pardoned for a Federal crime, you could not be re-tried under state law for the same crime since that would constitute double jeopardy.
The first line, snipped by the preview is “A friend of mine asked me this question, so I researched it; the answer, turns out, is yes:” Several relevant Supreme Court cases are referenced to back that up.
Even if the 5th Amendment was still in play, couldn’t prosecutors just grant them immunity (since they can’t have any repercussions from the crimes that they’ve been pardoned for anyway)?
Not necessarily. It depends on the state constitution or statute law.
The double jeopardy clause only applies to subsequent prosecutions by the same sovereign. A person can be convicted under federal law and also under state law for similar offences arising out of the same events, because the “People of the United States” are a different sovereign from the “People of the State of New York”.
I probably don’t understand the 5th that well. But it sort of seems to me that refusing to answer questions so that you would not get caught up in a conspiracy or other criminal wrong doing is sort of sleazy.
IOW, if you help someone in the commission of a crime, you should not be able to pled the 5th for a lower, or no sentence that involves said crime.
I don’t think that someone that loans someone a car for criminal activity should be as heavily prosecuted as the perpetrators of said crime unless they knew that the car would be used to commit murder.
If you knew of the crime, and did nothing about it, I suppose that’s a different story.
So, if you refuse to testify, should you be put in jail on contempt, until you crack?
Or if you refuse to testify, should the prosecutor be able to say to the jury “The accused is obviously guilty because he won’t testify in his own defence. He’s convicted by his own silence.”
The principle against self-incrimination is that the state has to prove you committed the offence, beyond a reasonable doubt, and the state cannot enlist you to assist them in proving that offence. The onus is on the state, and the state cannot get around that onus by compelling you to testify against yourself.
Trump is a much bigger target than any of his underlings and/or children; if he were criminally charged it seems like any prosecutor would be willing to grant immunity to force testimony against him.
I believe executive privilege is going to protect members of Trump’s administration and/or family from having to testify as long as he’s in office. So they don’t have to worry about the Fifth Amendment issues.
A grant of immunity is a very big, very tough decision for a prosecutor. You are literally excusing an individual who you know was complicit in a crime from bearing the criminal consequences of their actions. That’s the opposite of what prosecutors are supposed to do. You risk granting immunity to an individual whose involvement and culpability were greater than you realized, and you end up getting crucified for letting him or her off scot-free. And it could all be for naught, if the witness ends up having limited useful information, or being unreliable or not credible (and you can bet the defense will be putting that immunity deal front-and-center of their attack on the witness’s credibility).
So yes, federal prosecutors could use immunity to force Jared or Ivanka to testify, but the cost versus the benefit would have to be carefully weighed.