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.

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