Daily Archives: February 8, 2021

Dems: The Fifth Amendment against self-incrimination doesn't apply to Trump

By Dennis Byrne, Thursday at 12:58 pm

The Fifth Amendment protects the accused from having to take the stand under oath and testify against himself. It's one of the pillars of the American right of due process.

But not for ex-President Donald Trump in his Senate impeachment trial.

TodayLead Impeachment Manager Jamie Raskin (D-Maryland) sent a letter (below) to former President Trump requesting that "he provide testimony under oath, either before or during the Senate impeachment trial, about his conduct on January 6."

It's okay to invite him. Everyone in the dock knows that he has a choice whether to testify on his own behalf. The prosecution can force him. And the judge typically instructs the jury that a defendants refuse to testify can't be used as evidence of his guilt.

Unless you're Donald Trump. Raskin's letter ends with this threat:

If you decline this invitation, we reserve any and all rights, including the right to establish at trial that your refusal to testify supports a strong adverse inference regarding your actions (and inaction) on January 6, 2021.

Hey, Raskin, do you know how to spell railroad? Or Constitution?

His letter:

February 4, 2021

President Donald J. Trumpc/o Bruce L. Castor Jr. and David Schoen

Via E-Mail

Dear President Trump,

As you are aware, the United States House of Representatives has approved an article of impeachment against you for incitement of insurrection. See H. Res. 24. The Senate trial for this article of impeachment will begin on Tuesday, February 9, 2021. See S. Res. 16.

Two days ago, you filed an Answer in which you denied many factual allegations set forth in the article of impeachment. You have thus attempted to put critical facts at issue notwithstanding the clear and overwhelming evidence of your constitutional offense. In light of your disputing these factual allegations, I write to invite you to provide testimony under oath, either before or during the Senate impeachment trial, concerning your conduct on January 6, 2021. We would propose that you provide your testimony (of course including cross-examination) as early as Monday, February 8, 2021, and not later than Thursday, February 11, 2021. We would be pleased to arrange such testimony at a mutually convenient time and place.

Presidents Gerald Ford and Bill Clinton both provided testimony while in officeand the Supreme Court held just last year that you were not immune from legal process while serving as Presidentso there is no doubt that you can testify in these proceedings. Indeed, whereas a sitting President might raise concerns about distraction from their official duties, that concern is obviously inapplicable here. We therefore anticipate your availability to testify.

I would request that you respond to this letter by no later than Friday, February 5, 2021 at 5pm. I look forward to your response and to your testimony.

The pertinent part of the Fifth Amendment:

No person shall be...compelled in any criminal case to be a witness against himself....

Link:
Dems: The Fifth Amendment against self-incrimination doesn't apply to Trump - ChicagoNow

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 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 justcompensation.

The Fifth Amendment contains some of the most critical protections in the Constitution for those accused of crimes, safeguards that help keep a tyrannical government at bay. In total, it declares five separate but related rights to all citizens. The first right mentioned is that of a grand jury which is a group of citizens, typically 16-23members, assembled by a prosecutor to determine if there is sufficient evidence to charge someone with a felony. It is called a grand jury because it has more jurors than a trial jury. Importantly, it is not a court proceeding.

Its history dates to the Magna Carta in 1215 and was part of the English common law present in colonial America. Its intention is to shield the people from frivolous government accusations. Interestingly, only two nations still conduct grand juries, the United States and Liberia.

The so-called Double Jeopardy clause protects citizens from being accused and going through the rigors of a trial twice for the same offense. Our Founders considered this principle a matter of fairness and compassion.

Although this doctrine is a bedrock principle of our legal system, there is one key exception. Namely, a person can be tried separately by the federal government and a statejurisdiction for the same offense.

The third section is privilege against self-incrimination, know to us today as taking the Fifth.

It is arguably the most fundamental right of those found in the Fifth Amendment. At its base is the natural right to self-preservation.

This concept was part of English common law and its roots trace to the practice of religious orders extorting confessions through torture. By the mid-1700s, coercing answers from prisoners had largely died out in England and men like James Madison wanted to guarantee the same right to Americans.

In 1961, the Supreme Court in Miranda v. Arizona held that authoritiesmust inform a suspect of this right against self-incrimination before proceeding with questioning.

Otherwise, any testimony would be inadmissible.

The fourth section isreferred to as the DueProcess clause and protectslife, liberty, and propertyfrom impairment by thefederal government. TheFourteenth Amendment grantsthe same protectionsfrom the states.

This language means that the government must follow proper procedures and not violate any Constitutional rights when seeking a conviction or that conviction will not stand.

Basically, it makes the government accountable in how they act towards the people.

The final right granted in the Fifth Amendment is the Takings clause. In essence, it requires the government to provide just compensation for private property taken from any citizen. We know this concept as eminent domain.

This right could havegone even further by forbidding the forceful taking of a persons private property regardless of the compensation. However, our Founders knew that sometimes societal needs must outweigh individual rights.

WHY IT MATTERS So why should the protections and rights enshrined in the Fifth Amendment matter to us today? Our Founders lived in a time when forced confessions and judicial intimidation were a thing of the not-so-distant past.

They wanted to ensure Americans did not have to revisit those times.

Thanks to their foresight, we now enjoy a legal system in which we are innocent until proven guilty, and it is the responsibility of the government to prove the guilt. We should be grateful to our forefathers for creating that system.

As Supreme Court Justice William Douglas said, The Fifth Amendment is an old friend a good friend. It is one of the great landmarks in mens struggleto be free of tyranny, to be decent and civilized.

SUGGESTED READING An excellent reference book on our founding period is The Founding Fathers, The Essential Guide to the Men Who Made America. It is written by Encyclopedia Britannica and covers the key leaders and founding documents of our early nation.

PLACES TO VISIT Colonial Williamsburg in Williamsburg, VA is a real national treasure and well worth a visit. It recreates life in the 1770s and includes a courthouse in which they conduct mock trials and a jail exhibit detailing prison conditions in colonial times.

Until next time, may your motto be Ducit Amor Patriae, Love of country leads me.

Tom Hand is a West Point alumnus and a Ford Plantation resident. You can reach him at tom@ americanacorner. com. And, read his blog at americanacorner.com.

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Americana Corner: The Bill of Rights: The Fifth Amendment - Bryan County News

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When asked to explain what happened to millions of dollars lent to him by an elderly Little Rock man, Kristian D. Nelson of England repeatedly cited his Fifth Amendment right against self-incrimination, a move that could hurt the ex-con at trial.

Nelson sat for a deposition on Sept. 23 in the civil lawsuit brought by Richard F. Toll, 90, who sued Nelson in July. Toll accused Nelson of defrauding him of $4.5 million in less than three years.

Meanwhile, on Jan. 29, Pulaski County Circuit Court Judge Wendell Griffen denied a request from Tolls attorney, David D. Wilson of Friday Eldredge & Clark of Little Rock, for a partial summary judgment on a $1.8 million loan that Nelson allegedly defaulted on.

Wilson argued during the virtual hearing that its undisputed that Mr. Nelson did not make payments under the note.

Nelsons attorney, Robin Vail of the Law Offices of Miller Vail of Heber Springs, argued against awarding the judgment, saying Nelson disputed how much was owed on the loan. Griffen agreed, but he also denied requests from Vail, which included sending the case to arbitration.

Vail also represents Nelsons used car outlet, I Sell 4 U Auto Sales LLC of North Little Rock, which is also a defendant in Tolls lawsuit.

The alleged fraud started in September 2017, when Toll first lent Nelson $10,000 for the restaurant Hawgz Blues Caf LLC of Little Rock, the suit said. Nelson told Toll he owned the restaurant, but he didnt, according to the lawsuit.

Nelson then kept returning to Tolls house on an almost weekly basis with manipulative lies and fabrications to entice more and more money from Toll, according to the suit.

Nelson told Arkansas Business in August that he needed money for the Little Rock restaurant, a second Hawgz site in North Little Rock and I Sell 4 U Auto Sales, which Nelson formed in 2018.

Hawgz Blues Caf also is being sued. The restaurant is represented by attorney Kathryn Hudson of Little Rock, who told Arkansas Business in an email in August that Kristian Nelson is not the owner but the manager, and Hawgz Blues Cafe denies the complaint.

Nelson repeatedly cited his Fifth Amendment right against self-incrimination during the deposition, which lasted seven and a half hours. Invoking the Fifth Amendment could hurt a witness in a civil trial, said Joshua Silverstein, a professor at the Bowen School of Law at the University of Arkansas at Little Rock.

Generally when a witness invokes the Fifth Amendment, the jury can draw the inference that theyre asserting it for a bad reason, or theyre asserting it because what theyre being accused of is true, he said.

During Nelsons deposition, Wilson asked Nelson if he believes he will be criminally prosecuted for his dealings with Toll.

I dont believe so, said Nelson, who in 2009 was sentenced to 71 months in federal prison for wire fraud after taking about 20 investors for more than $1 million.

Nelson added that his dealings with Toll were a complicated issue. Theres not just a simple yes or no. If I say yes to something and admit it, then it makes it look like that I am criminally doing something. But if Im not able to tell what happened, then it could be construed as something wrong. So I really want to get this out. I really want to get this thing to where its right.

Wilson accused Nelson of dodging questions during the deposition, as Nelson frequently answered with I dont know or I dont remember. Wilson asked Nelson if he had memory problems. I dont know, Nelson said. I dont think so.

If Nelson has a different answer at the trial, that also might hurt his credibility.

Silverstein said if witnesses give different answers during their trial than at their deposition, the cross-examining attorney can quote from the deposition to challenge the statement.

If there are real differences, then you can use the deposition to suggest that the witness is perhaps not being entirely forthright would be one way to say it, he said.

Wilson has requested that the case be scheduled for three days in October.

He said during the hearing last month that the longer the case is delayed, the better it is for Nelson, because he just spends the money, and theres none left for my client.

See the original post here:
Ex-Con in Fraud Case Takes the Fifth - Arkansas Business Online

On January 28, 2021, HHS issued a fifth amendment to the Declaration under the Public Readiness and Emergency Preparedness Act (PREP Act), expanding the categories of persons able to prescribe, dispense, and administer COVID-19 vaccines under the protections of the PREP Act (the Fifth Amendment).

HHS first issued a Declaration under the PREP Act in March 2020, providing liability immunity for medical countermeasures against COVID-19. There have since been four amendments to the Declaration, expanding liability immunity for various actions taken by qualified persons in furtherance of the COVID-19 countermeasures. In the Fifth Amendment, HHS now amends Section V of the Declaration to add additional categories of persons covered under the PREP Act as qualified to prescribe, dispense, and administer COVID-19 vaccines. The Fifth Amendment specifically permits the following:

To be covered by the protections of the PREP Act, the Fifth Amendment requires these qualified individuals to complete the CDCs COVID-19 Vaccine Training and, for healthcare providers who are not currently practicing or whose license or certification is expired, to undergo a period of on-site observation by a currently practicing healthcare professional.

The language of the Fifth Amendment can be found here. The press release issued by HHS is available here.

The rest is here:
HHS Expands Categories of Persons Covered Under the PREP Act Who Can Administer COVID-19 Vaccine - JD Supra

Senate Republicans still smarting over their unexpected demotion to the minority will go on offense Thursday by forcing Democrats to take tough votes on sending stimulus checks to immigrants living in the country illegally and raising taxes on small businesses.

Senate Minority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellSenate eyes speedy Trump impeachment trial Republicans look to pummel Democrats on school reopenings GOP blames White House staff for lack of COVID-19 relief deal MORE (R-Ky.) previewed the strategy ahead of a marathon voting session on a Democratic budget resolution that will lay the groundwork for passing a $1.9 trillion COVID-19 relief package with a simple majority vote, avoiding a filibuster, later this year.

The voting session is described by both parties as a vote-a-rama.

Were going to put senators on the record . Well see how our colleagues vote on these basic, commonsense steps. Well see what this resolution looks like on the other side and what signals Democrats send the American people along the way, McConnell said on the floor Thursday morning.

One of the top GOP priorities is to force Democrats to vote on an amendment sponsored by Sens. Todd YoungTodd Christopher YoungRepublican 2024 hopefuls draw early battle lines for post-Trump era Senate Democrats approve budget resolution, teeing up coronavirus bill House will have to vote on budget second time as GOP notches wins MORE (R-Ind.) and Tom CottonTom Bryant CottonRepublican 2024 hopefuls draw early battle lines for post-Trump era The Hill's Morning Report - Presented by Facebook - House boots Greene from committees; Senate plows ahead on budget Cotton tries to squeeze Democrats on expanding the Supreme Court MORE (R-Ark.), a potential White House candidate in 2024, that would prohibit stimulus checks forundocumented immigrants.

The amendment applies to what is expected to be the third round of direct payments following checks sent out through last years CARES Act and the $900 billion rescue package passed in December.

The amendments, however, do not have the force of law as they are being offered to a budget resolution, which does not require the presidents signature.

The Biden administration shouldnt reward illegal immigrants for breaking our laws by giving them checks, Cotton said in a statement.

A second amendment sponsored by Sen. Marco RubioMarco Antonio RubioLawmakers wager barbecue, sweets and crab claws ahead of Super Bowl Republican 2024 hopefuls draw early battle lines for post-Trump era The Hill's Morning Report - Presented by Facebook - House boots Greene from committees; Senate plows ahead on budget MORE (R-Fla.), another potential White House hopeful, and Sens. Tim ScottTimothy (Tim) Eugene ScottSenate panel advances Biden's picks for Housing secretary, chief economist Republicans seek to play offense in vote-a-rama The Hill's Morning Report - Presented by Facebook - Democrats chart path to pass Biden's COVID-19 relief plan MORE (R-S.C.) and James LankfordJames Paul LankfordHow your taxes subsidize the Super Bowl and how that might change Republicans seek to play offense in vote-a-rama The Hill's Morning Report - Presented by Facebook - Democrats chart path to pass Biden's COVID-19 relief plan MORE (R-Okla.) calls for preventing tax increases on small businesses during the pandemic.

A third amendment sponsored by Scott, Lankford and Sen. John BarrassoJohn Anthony BarrassoOVERNIGHT ENERGY:DOJ to let companies pay for environmental projects again to reduce fines | House Democrats reintroduce green energy tax package Republicans seek to play offense in vote-a-rama Sanders, Ocasio-Cortez, Blumenauer aim to require Biden to declare climate emergency MORE (R-Wyo.) would reduce funding to states that are actively investigating nursing homes for underreported deaths.

A fourth sponsored by Sens. Roy BluntRoy Dean BluntDemocratic senator demands Rand Paul wear a mask on Senate floor Republicans seek to play offense in vote-a-rama Missouri newspaper urges Hawley, Blunt to 'bring Trump to justice' MORE (R-Mo.) and Scott would call for withholding supplemental funding from schools that do not reopen for in-person learning even after its teachers receive coronavirus vaccines.

The fifth amendment being highlighted by the GOP leaders is sponsored by Senate Minority Whip John ThuneJohn Randolph ThuneSenate eyes speedy Trump impeachment trial House votes to kick Greene off committees over embrace of conspiracy theories Republicans seek to play offense in vote-a-rama MORE (R-S.D.) and calls for limiting the tax liability for medical professionals who crossed state lines to make up for a shortage of health care workers in areas hit hard by the pandemic. It would protect doctors, nurses and other professionals from having to pay state and local income taxes in multiple jurisdictions, in certain cases.

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Republicans seek to play offense in vote-a-rama | TheHill - The Hill

"The Crooked Path to Abolition" by James Oakes. Norton. 256 pp. $26.95. Review provided by The Washington Post.

In his illuminating new book, James Oakes, an acclaimed historian, offers us a "third Lincoln": neither the mythic Great Emancipator nor a flawed reluctant emancipator, but instead a committed proponent of anti-slavery constitutionalism.

Lincoln, Oakes argues in "The Crooked Path to Abolition: Abraham Lincoln and the Antislavery Constitution," consistently upheld the "federal consensus" on slavery: that Congress could not abolish slavery in any state but also could not interfere with a state's choice to emancipate enslaved people. Within these constitutional boundaries, Lincoln pursued, before and during the Civil War, the goal of abolition by individual states. He intended that pressure from the federal government would move the Southern states to enact their own gradual emancipation policies, as individual Northern states had done after the American Revolution.

Lincoln's outlook was rooted in a distinct anti-slavery constitutionalism, elaborated by reformers and politicians in counterpoint to the pro-slavery constitutionalism of Southern enslavers. During the antebellum decades, as slavery's apologists ratcheted up their claims that slaveholding was a constitutionally protected property right, abolitionists drew out the anti-slavery implications of the founding documents. For example, while Southern enslavers emphasized their summary right of recaption of fugitives, abolitionists emphasized states' authority to require due process in renditions. The Constitution's ambiguity on the fugitive issue meant "that every slave who escaped from Maryland to Pennsylvania, or from Kentucky to Ohio, opened the possibility of a political conflict between the owner's claim to his or her 'property' and the free state's recognition of the accused fugitive's right to due process."

Invoking the Fifth Amendment right to due process was just one of the many ways that slavery's opponents "colonized" the Constitution, imbuing certain clauses with anti-slavery meaning. They also emphasized such measures as the territorial clause, which granted Congress the power to ban slavery from the territories, thereby preventing the addition of new slave states. By the time he became president in 1861, Lincoln had embraced most elements of what Oakes calls the "Anti-slavery Project": a set of policies, such as congressional abolition of slavery in the District of Columbia and the suppression of illegal smuggling of enslaved people into the United States, designed to reverse slavery's expansion and shift the sectional balance of power northward.

Lincoln homed in on the banning of slavery's expansion in the territories as the one issue around which his Republican Party was "most likely to build a winning coalition." In his reckoning, the policy of nonextension, by surrounding slave states with a cordon of free states, would undermine slavery's economic profitability and motivate Southern Whites to dismantle the institution.

The Civil War, Oakes shows, radicalized Lincoln, compelling him to press more aggressively an agenda of state-level emancipation, through both threats and incentives aimed at enslavers. Lincoln seized on the anti-slavery movement's long-standing forfeiture-of-rights doctrine, which held that seceded states would relinquish their right to have fugitives returned, and on the doctrine that emancipating the enemy's enslaved people was a legitimate use of war powers. These pre-war doctrines formed the basis of the wartime policy by which the Union Army confiscated, freed and eventually enlisted fugitive slaves.

Lincoln also tried in vain to entice the loyal border slave states to adopt gradual emancipation policies, by offering to compensate them for their financial losses and to deport those who were freed. Though his overtures were rebuffed, he remained committed, even after his Emancipation Proclamation of 1863, to promoting state-by-state abolition. Lincoln's sustained campaign to shift the balance of power in these states toward anti-slavery forces worked, as six state governments Maryland and Missouri, which had never seceded, and Virginia, Arkansas, Louisiana and Tennessee, which were undergoing wartime reconstruction abolished slavery in the last year of the war. Adding them to the roster of free states made possible the 1865 ratification of the 13th Amendment, which abolished slavery throughout the United States. This course of events was "hardly inevitable," Oakes notes, but "neither was it accidental": Anti-slavery constitutionalism guided Lincoln's journey down the winding path to emancipation.

A commitment to the federal consensus not only drove but also constrained Lincoln. The limits of his egalitarianism his failure to support full social and political equality for Blacks were, Oakes surmises, a function of his federalism. Lincoln regarded the right to vote or hold office or marry or attend public schools or serve on juries as state matters, beyond the purview of the federal government; under a federal system, state legislatures retained the power to practice local racial discrimination. In deferring to this notion of states' rights, Lincoln also deferred to discriminatory views and practices.

This book represents a shift in Oakes' own thinking. While his 2007 study of Frederick Douglass and Lincoln, "The Radical and the Republican," juxtaposed Douglass the crusading reformer with Lincoln the cautious politician, this volume foregrounds the commonalities between the two men. Lincoln shared with Douglass, Oakes emphasizes, an abiding belief in the abolition movement's core principle of fundamental human equality.

Much insight is to be gained by contrasting the anti-slavery constitutionalism of Douglass and Lincoln with the pro-slavery constitutionalism of Southern enslavers: Doing so brings into sharp focus the anti-racist qualities of Lincoln's leadership. But Oakes' earlier approach remains salient. Douglass and Lincoln both hated slavery, but "they hated it in different ways," as Oakes has cogently put it. Lincoln's view of Black freedom was considerably narrower than that of Douglass and of the Black resisters and reformers who were the vanguard of the abolition crusade. Understanding the convergence of Lincoln and Douglass is essential for understanding slavery's wartime demise. Acknowledging the persistent fault lines in the North, even among slavery's opponents, is a key to understanding why fundamental rights remained so elusive for Black Americans.

Reviewed by Elizabeth R. Varon, who is the Langbourne M. Williams professor of American history at the University of Virginia and the author of "Armies of Deliverance: A New History of the Civil War."

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Book review: 'The Crooked Path to Abolition' - Bowling Green Daily News