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What’s the Magna Carta have to do with Pleading the 5th?

Signing of the Constitution and Bill of Rights 1787, Continental Congress, Philadelphia
Signing of the Magna Carta, King John (far right) Knights (far left) 1215

Remember when we believed someone who pleaded the Fifth was guilty? Those who took the 5th did not want to “incriminate” themselves. So the accused would not answer questions. Donald Trump, the same guy who in 2016 lacerated Hillary Clinton’s tech staff who installed her private email server, for taking the Fifth.* Trump said, “only the Mob takes the 5th.” But in 1990, in his first divorce trial and just last week, Trump took the Fifth himself. He says the allegations against him are a “witch hunt” or a “fishing expedition” as his excuse for not responding.

Trump sat with New York State’s Attorney General Letitia James a week ago. She has been investigating Trump’s state tax returns in a civil suit for tax evasion (lowering his income for purposes of income taxes) and inflating his wealth to obtain loans to cover his debts.

During his presidential campaign, Trump said that evading taxes “shows he’s smart.” But now, Trump’s long-time chief financial officer, Allen Weisselberg, 75, pleaded guilty to 15 counts of evading taxes on $1.7 million perks, including a free apartment in Manhattan, school tuition for his grandchildren, and lease payments on a luxury car. (He made a plea deal rather than face 15 years in prison and will spend five months at New York City’s Rikers Island. He will be answering questions.)

What’s the source of the Fifth Amendment?

It goes back to the heart of Anglo-Saxon law–The Magna Carta signed on June 15, 2015, by King John, the British barons, and landowners at Runnymede. The charter limited the king’s absolute authority and laid out the rights of English citizens and commoners. American law is based on this social contract written into the Magna Carta.

In America, the Continental Congress passed the Bill of Rights in 1789; this included the 5th Amendment to protect a person’s rights in these ways:

  1. A person cannot be forced to give testimony against themselves (Self-Incrimination). The 5th Amendment is the basis for the Miranda Warning. (“Anything you say or do may be used against you in a court of law.”)  The government must call other witnesses and find evidence to prove the crime.
  2. You have the right to a fair trial that follows procedure through the judicial process
  3. You are judged innocent until proven guilty. (Due process)You can’t be tried twice for the same crime (Double Jeopardy)
  4. A Grand Jury looks at the evidence to determine whether to indict the accused for a criminal offense; if they decide to charge a person with a crime, they issue an indictment and hold a trial. The Grand Jury traces its roots directly to 1215, the Magna Carta, and Due Process.
  5. The government cannot take your private property unless you are paid current market value in return. (Eminent Domain)

Another critical case about the Fifth Amendment (self-incrimination) involved five young black men convicted of killing a white woman in Central Park in New York City. After they were imprisoned for ten years, a court ruled they had been coerced into giving false testimony after lengthy interrogation and abuse. Under the Fifth Amendment, a confession obtained illegally is not admissible in court. They were freed when the truth came out. Then the actual killer was arrested and convicted.

Due process says that a person is innocent until proven guilty and deserves an opportunity to present their case in court. The concept of due process tells me to reconsider my idea that those who plead the 5th are “guilty,” but it is challenging at times.

Taking the 5th has different outcomes in criminal vs. civil courts. In federal cases, taking the Fifth does not imply guilt. But in civil cases, it can have consequences—providing an inference of guilt is allowed. The current case in New York State likely will be the beginning of a triangular legal sea saw between Trump, NY Attorney General James, and the U.S. Department of Justice.

What’s the Magna Carta’s role in Pleading the Fifth in American courts today? It’s bedrock. American law sits on the foundation of British law that traces to the 13th century when the nobility and the landed gentry demanded fairness in their courts and protection from the absolute power of the king.

Next week I’m looking at David Litt’s book Democracy in One Book or Less.

  • No one was ever charged after the investigation into the mail server.

DOJ Doesn’t Play Games

Who holds the Aces? Time will tell.

Let’s get the objections out of the way first. Last week’s FBI visit to Mar-a-Lago was not spur of the moment. In January 2022, the Department of Justice issued a subpoena for documents that Donald Trump had taken back to his Mar-a-Lago property in Palm Springs upon leaving the White House. Then they obtained 15 boxes, some marked classified. These were taken back to the National Archives, where Presidential Records are kept. After a review, the Archives found that boxes of classified information were missing.

Donald Trump, like any other former President, could take with him diaries and personal documents not related to official business in office as president. But the records are not like a tray of mints offered upon leaving Sardi’s in New York, free for the taking. According to the Presidential Papers Act, originally passed in 1978 responding to Richard Nixon, official presidential documents were to be released to the Archives upon leaving 1600 Pennsylvania Avenue.

During the outrange by the former president’s supporters last week, there has been a reference to Watergate. Many of these people either weren’t alive then, haven’t cracked a history book, or just liked throwing around the word “Watergate” to gain support from others not curious enough to learn the true backstory. This search for documents took place in broad daylight.

Trained members of FBI operated with a legal search warrant, which was granted based on information about where the documents were located (all necessary before a federal judge in Florida would sign off). The attorney general added his signature to the warrant on Friday, two days prior to the search.

Watergate” involved a break-in at a Democratic National Committee headquarters in the Watergate Office Building in 1972. The five men arrested for the break-in were connected to the Committee for Re-Election of the President (Nixon) sponsored by a political branch of the Republican Party. They were low-level thieves hired because Nixon had become paranoid, thinking he would lose the election. So paranoid that he set up an audio taping system on his White House phone that laid out his illegal deeds like a roadmap.

The search of Mar-a-Lago came with a legal search warrant and did not come without warning. In May 2022, AG Merrick Garland and the DOJ sent a subpoena to DJ obtain information about the missing documents. Trump ignored it. Because of the sensitive nature of the documents, the DOJ determined to press for the documents. They needed to learn where the classified documents were kept in order to obtain a legal search warrant. Someone within Trump’s inner circle provided the information needed to obtain the warrant. A Florida judge signed off after receiving specific information about the documents and the location on August 5. On Monday, August 8 the search began. This wasn’t a spur of the moment “witch hunt.”

Outrange from Trump supporters followed during the week (see Watergate above) reached a dangerous level, threatening the security of federal law enforcement. Garland held a press conference to explain the process of the warrant and indicate Trump had a copy, which he could release if he desired, but set a deadline. Move up to Friday, August 12, DOJ got the go-ahead from Trump and released a copy of the August 8th search warrant and a list of the contents of the 20 boxes removed from Mar-a-Lago on Monday. The boxes taken included 11 boxes marked classified, including 4 sets of top-secret documents. Charges were made for mishandling of defense information (classified documents) and destruction of federal documents. Those included related to Oliver Stone’s pardon and interaction with French Premiere Macron.

One irony in the case is that in 2019 Trump signed into law an increase in the punishment for breaking these laws from one to five years in prison.

Trump could have present the list to the media himself. Instead, he sent out attorney Christina Bobb to explain that Trump was following “decorum.”  Since when in his life has Trump followed decorum?

On Friday, August 12, Garland released the list of the boxes taken from Mar-a-Lago, as the match continues. Garland remained calm, uncharacteristically responding to the uproar during an FBI investigation. He said he signed off one the search warrant himself after the judge. Friday Garland also released the list of the boxes taken from Mar-a-Lago. The match continues, but with classified documents now in DOJ hands, DT’s limo may have hit a speed bump too high to sail across.