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Police stand outside an entrance to former President Donald Trump's Mar-a-Lago estate on Monday, August 8, 2022, during an FBI search. (Wilfredo Lee / AP Photo)

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It might not feel like it yet, but the parade of advertisements flashing across my screen tells me that summer is winding down and its time to prepare for autumn. For my wallet, that means shelling out for back-to-school supplies. For the country, it means midterm election mania, when every story and every event gets filtered through the haze of the partisan horse race.

It also means were reaching the point when significant attempts to hold former president Donald Trump accountable for any of his apparent crimes will probably be put on hold, delayed until after the elections. Attorney General Merrick Garland has even said as much, warning the DOJ to avoid making moves that may be perceived as political close to the election.

One result is that weve missed our chance to hold Trump or any of the other attempted coup plotters responsible before voters head to the polls. Whether or not these people ultimately get away with it, they have at the very least made it to the next election cycle without facing any punishment for trying to overturn the last one. In fact, a number of people who openly supported the failed coup, and who still support the debunked notion that Trump won in 2020, will now get to run for positions from which they can overthrow elections in the future. Republicans who support the Big Lie are running for state election boards, secretary of state, and even governor, while senators and Congress members who voted against certifying the election are seeking office once again.

This represents an enormous failureof law enforcement, media, and of the Republican Party, which has embraced lies and candidates who support lies. A strong and well-functioning country simply doesnt let the people who tried to destroy its way of life escape unpunished; it certainly doesnt let them run for positions of public trust from which they can better implement their nefarious plans.

Even so, and despite these failures, Trump remains under a cloud of legal suspicion, subject to many investigations, which have only intensified over the summer. And regardless of how the midterms turn out, the power of various law enforcement officials to pursue Trump will remain intact.

Before the investigations enter a stage of public quiet, lets take stock of where things stand with them.

The Department of Justice executed a search warrant against Donald Trump at his Florida home on August 8 and recovered around a dozen boxes of documents containing sensitive materials. Trump and his sycophants have flooded the airwaves with lies and misinformation about those documents, including an initial claim that the FBI planted them at Mar-a-Lago and a subsequent claim that they were declassified by Trump while he was president. By now, most people should recognize this white-wing playbook: first, they claim that it didnt happen; then they claim that it doesnt matter if it happened; then, if it turns out that it does matter, they argue that Hillary Clinton or Black Lives Matter did something worse. Current Issue

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On the low end of the bad-presidential-behavior scale, Trump may have mishandled official recordssomething I assume hes been guilty of for a long time given his penchant for ripping and even flushing official documents. A violation of the Presidential Records Act, however, carries no teeth.

On the high end of that scale, Trump may have violated the Espionage Act, which can be punished by up to 20 years in prison (the death penalty is really only available in a time of war). Depending on what was in those documents, and how Trump used or intended to use them, he could have violated the prohibitions against gathering, transmitting, or losing defense information, and those violations would hold up even if Trump really did declassify the documents.

The distance between a presidential records violation and espionage is vast. We do not know what other evidence the DOJ has against Trump. We do know that the agency gave him ample opportunity to return the documents voluntarily, but we dont know if that courtesy suggests the relative insignificance of Trumps offense, or if the delay afforded Trump additional opportunity to commit crimes while under surveillance.

This case is a bit like a meteor: Its very hot and it could crash down on Trumpworld with devastating effect, or it could fizzle out in the sky as a pretty spectacle signifying nothing.

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The upshot of the espionage case is that it appears that the FBI raid of Mar-a-Lago was wholly unconnected to the ongoing investigation into the plot to overthrow the government on January 6, 2020. The raid was not the culmination of a years-long investigation into Trumps culpability for the coup attempt; it is not evidence that Merrick Garland has been working in secret all this time to bring Trump to justice. Its just another indication that Trumps potential crimes are legion, and any time you actually look at the guyreally look at himyou catch him in the act of committing additional crimes.

That said, there is evidence that Garlands investigation into Trumps attempt to declare himself the winner of the 2020 election is picking up steam. The conclusion of last months January 6 Committee public hearings has opened up new avenues of investigation for the DOJ, mainly thanks to the explosive testimony of former White House aide Cassidy Hutchinson. We know that witnesses who long stonewalled authorities, like former White House counsel Pat Cippolone, are now willing to talk. We know that the January 6 Committee has worked out a deal to share information and witness testimony with the DOJ. We know that the DOJ has the phone records of key players in the plot to put forward fake electors to contest the electoral countincluding Trump lawyer John Eastman and former White House chief of staff Mark Meadows. And we know that a grand jury has been subpoenaing witnesses and documents related to January 6, even if we dont know whats happening in front of it.

In short, we know that things are happening inside the Department of Justice. I doubt that we will see any indictments in September or October, before the midterms, but it is an increasingly safe bet that all of this work will lead to the indictment of somebody in connection with the attempted coup. I hope we find out in 2023.

New York State Attorney General Letitia James continues to unravel the web of potential financial crimes committed by Trump, his family, and his organization in New York State. Her investigation recently put Trump in a deposition chair to answer questions about his financial dealings under oath.

Trump availed himself of his Fifth Amendment right against self-incrimination during the deposition. There are many reasons a person would and should take the Fifth when being questioned about their potential crimes. Its the smart thing to do; if I were questioned by Tish James about my damn checking account, I would take the Fifth until I was convinced she was investigating somebody else, and I havent been running a long-term scam to reduce the valuation of my assets for tax purposes.

A target of an investigation, as Trump must surely be, should take the Fifth, and a targets taking the Fifth should in no way hinder a competent investigation or prosecution. Fans of legal television dramas may be addicted to the notion of the bad guy confessing his crimes under an intense interrogation or cross examination, but in the real world prosecutors have documents and testimony that counts as evidence that can be used to prove criminal activity, regardless of whether the criminal cooperates in their own downfall.

Trumps deposition was merely a courtesy to allow him to explain himselfand perhaps lock himself into a story. Trumps (wise) decision to listen to counsel and not answer Jamess questions simply means that she will have to prove his guilt. It was never going to be Trumps job to do that work for her office.

We dont know if James has enough evidence to convince a grand jury that Trump should be indicted for financial crimes, but I suspect James does know if she can get him. I dont think she would have brought Trump in for a deposition if she didnt already have a strong case. I doubt anything will happen in New York before the midterms, but, of all the potential charges Trump could face, the ones in this case feel closest to culmination. Bringing Trump in for a deposition is very close to a final investigative step; now we have to wait and see if James charges him.

While the New York investigation may be the closest to completion, I have long thought that the Georgia investigation into Trumps attempted election fraud, headed by Fulton County District Attorney Fani Willis, is the most likely to lead to Trump going to jail. Thats because we have evidence in the form of a taped phone call of Trump trying to commit election fraud or trying to get Georgia Secretary of State Brad Raffensperger to commit election fraud on his behalf.

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There have been recent developments in the case that spell potential doom for Trumpworld. Trump political caddy Lindsey Graham has been ordered by a judge to comply with a subpoena in the investigation. And lawyers for Rudolph Giuliani have been told that the former New York mayor is a target of the investigation.

With Graham in the spotlight and Giuliani under the gun, I allow myself to dream that testimony from two of Trumps most constant political allies could one day seal his fate. I allow myself to hope that Trump is ultimately busted for trying to steal an election in a state that, even if he had won, wouldnt have changed the outcome in the Electoral College. I would love for Trump to go down, in the end, because he cant count to 270.

But again, none of that will happen before the midterms. Grifters like Graham and Giuliani will stonewall till the last, and Willis has already said she will pause her investigation if it gets too close to this years elections. Trump is in legal jeopardy in Georgia, but not in imminent danger.

All of these investigations will be waiting for Trump on the other side of the midterms, regardless of where the balance of political power resides in Congress. But every investigation into Trump is contingent on Democratic Party candidates holding positions of power in the long term. Republicans at the state and federal level have refused to investigate Trump and have instead devoted their entire party to his legal defense.

Hopefully, voters will remember that there is only one party that cares about democracy available to vote for this fall.

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Trump Is a CriminalWill Any of These 4 Investigations Snare Him? - The Nation

Washington, D.C., Aug. 19, 2022 (GLOBE NEWSWIRE) -- A three-judge panel of the U.S. Court of Appeals for the First Circuit has unanimously ruled in Harper v. Rettig that taxpayer James Harper can take the Internal Revenue Service (IRS) to federal court for gathering private financial information about his use of virtual currency from third-party exchanges without a lawful subpoena.

IRS has, until now, successfully prevented federal courts from asserting jurisdiction over a significant constitutional challenge to the agencys unlawful data-collection practices. The First Circuit ruled that the U.S. District Court for the District of New Hampshire erred in itsMarch 2021decision granting IRSs motion to dismiss Mr. Harpers Fourth and Fifth Amendment challenge based on an alleged lack of jurisdiction. The district court did not have the benefit of the Supreme Courts May 2021 decision inCIC Services, LLC v. IRS, which concluded that the Anti-Injunction Act (AIA) does not prohibit a suit seeking to set aside an information-reporting requirement that is backed by both civil tax penalties and criminal penalties. Mr. Harpers suit, which seeks to set aside IRSs illegal information gathering, is likewise not a suit brought to enjoin a taxs assessment or collection, so it is not subject to the AIAs limits on court jurisdiction.

Judge Kermit Lipez, writing for the majority, rejects IRSs argument that the AIA bars Mr. Harpers suit because it seeks to restrain activities related to the assessment or collection of taxes. He notes that CIC Services provides clarity that information gathering is a phase of tax administration procedure that occurs before assessment [or] collection. Judge Lipez concludes that since IRSs activities against Mr. Harper clearly fall within the category of information gathering the [AIA] is not an applicable exception to the United States waiver of sovereign immunity. Indeed, as the Supreme Court explained in CIC Services, where, as here, there is no tax penalty at issue, then the case is a cinch, and the suit c[an] proceed.

Mr. Harper had contracted with third-party virtual currency exchanges to protect his private information against unlawful government intrusion. Despite his efforts to ensure his records were properly safeguarded, IRS took the data of Mr. Harper and thousands of other cryptocurrency holders from virtual-currency exchanges without reasonable suspicion and without providing a pre-data-collection notice and opportunity to contest IRSs dragnet operation. In ruling that the district court has subject-matter jurisdiction, the First Circuit has ensured that the IRS can be held accountable for this violation of Harpers Fourth and Fifth Amendment constitutional rights.

NCLA released the following statements:

The appeals courts decision upholds a basic tenet of our justice system: every citizen claiming the government is violating his constitutional rights is entitled to his day in court. The IRS sought to deny that right, arguing that allowing people to object to its collecting personal data would unduly hamper tax-collection efforts. The court rightly rejected that argument. Efficient tax collection must never be permitted to trump constitutional rights. Rich Samp, Senior Litigation Counsel, NCLA

The bad news is the federal government recently passed a law that could lead to hiring over 86,000 new IRS agents. The good news is that courtesy of the First Circuits ruling, brave individual taxpayers like Mr. Harper may now sue the Internal Revenue Serviceand its new agentswhen it tramples their constitutional rights. Mark Chenoweth, President and General Counsel, NCLA

For more information visit the case pagehere and watch the case video here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholarPhilip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLAs public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans fundamental rights.

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Original post:
In NCLA Win Against IRS, First Circuit Rules Taxpayers Can Indeed Take the Agency to Court - GlobeNewswire

Cost of wildfires

Re: the Aug. 9 article "Wildfire risk map spurs anger, pushback."

Wildfires are part of climate change. The national cost to fight wildfires has averaged over $2.3 billion/year between 2015-20.Property loss and deaths occur in these fires. The article about the Oregon risk map pushback is a sign of the times. People living in those area do not want to pay the costs for greater risk. Insurance premiums are an unaccounted cost in burning fossil fuels. Lloyds of London paid over $130 million in Oregon for wildfires in 2021. Should people living in areas with low risk pay for increased premiums?

Wildfire costs is one more reason that the Inflation Reduction Act is critical. Drought relief will occur and wildfires will decrease in frequency. We should thank our senators for supporting the passage of the bill so we can begin to reverse global warming.

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Inflation Reduction Act

Some assistance and advice, please. The badly misnamed and cruelly misleading Inflation Reduction Act promises to unleash a horde of 87,000 new IRS auditors on unsuspecting taxpayers. In our own backyard, though, our understaffed Border Patrol personnel are working their tails off just to keep the paperwork flowing as literally millions of undocumented newcomers cross our international border. Is something out of whack here? If not, I hereby offer to share my own auditor with other middle-income citizens. I don't think he or she is going to have much to do in harassing me over my modest annual earnings. Is it 2024 yet?

Fraud in the White House

Former President Donald Trump has just shown why he is unfit for any public office. He does not know the difference between the illegal break-in and burglary by the Watergate thieves and the FBI conducting a search based on credible evidence and a judges approval of the warrant previously approved by the director of the FBI and the attorney general of the United States. Trump appointed that judge and the director of the FBI. How many times have we heard him say that only mobsters and the guilty plead the Fifth amendment? He just pled the Fifth 450 times in New York. It is certainly his right to do so, but he said only crooks plead the Fifth. Lastly, the classified information found in his residence is a crime. As a former Air Force officer responsible for handling, storage and safekeeping of classified information, had those documents been in my house I would have been in jail for a long time.

Bad company for US

In the United States and Arizona in particular, the death penalty is legal and carried out. The arguments in its favor, deterrence and retribution, are shaky at best. And some wonder what they say about our cultural values. Another way of evaluating state-sanctioned execution is to look at the nations who support the punishment and those who oppose it. According to deathpenalty.org, nations who have abolished the death penalty include England, Canada, Mexico, France, Italy, Ukraine, Germany, Denmark, New Zealand, and Israel. According to the Stroum Center for Jewish Studies at the University of Washington, the State of Israel is an unusual case. Although the death penalty remains on the books, it has been employed only once, that for the execution of Adolf Eichmann, and never again. On the other hand according to worldpopulationreview.com, nations who employ the death penalty include Afghanistan, China, Iran, Saudi Arabia, Belarus, North Korea, Pakistan and the United States. Just consider.

City Attorney $30,000 payout

Re: the Aug. 8 article "City agrees on $30K payment."

It is bad enough that the Tucson City Attorney's Office paid out $30,000 to two women that based on solid evidence instigated a confrontation with off-duty Tucson Police Officer Robert Szewleski in a restaurant parking lot in 2021. One of the women was initially charged with disorderly conduct but the City Attorney dropped that charge and gave the woman $15,000. What a scam. This cowardly act by the City Attorney's Office, designed to avoid the time, money and risk of litigation, was simply shameful. This case should have gone to trial, which is the job of the City Attorney. That they "walked away" from fighting to support law enforcement also served to embolden others to seek easy money from the City of Tucson. I think the evidence in this matter cleared the officer by the City Attorney's Office and certainly did not warrant a payoff to the instigators.

Let's act smart on global warming

Re: the Aug. 10 article "We must act now on climate emergency."

Greg Falk sets out facts about the rise in global temperatures which are important. However, he omits two critical aspects both of which override anything we here in the U.S. might do.

First, the population in the world is growing too fast and our planet simply cant absorb so many people. The current population is 7.6 billion and is expected to reach another billion by 2030 and 9.8 billion in 2050. Our planet cannot sustain families of five, six, seven and more children. But no one seems to address this issue when discussing global warming.

Second, experts say that unless China and India reduce their carbon emissions, whatever we do in the U.S. will be ineffectual. We should not foolishly adopt measures which hurt us but which are worthless if India and China are not on board.

So focus on reducing world population growth and bring China and India on board for decreasing their carbon emissions.

Pro-life, sometimes

Since the Supreme Court overturned Roe, the Republican Party and legislators have led the fight against abortion (no exceptions). The outrage is that abortion kills a fetus and Republicans are pro-life. But in the last week since the FBI removed classified documents from Mar-a-Lago, fanatic followers of Donald Trump and fervent Republicans are advocating killing FBI agents. Evidently they dont have the sanctity of a fetus. This is horrific and insane rhetoric and behavior. There was a time when the Republican Party was known as the Law and Order Party. They embraced the FBI and championed them cracking down on protestors. It seems now there is nothing pro-life about the Republican Partys view, despite their anti-abortion propaganda. They are now the party of Trump. The only thing Trump is in favor of is: Trump.

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Letters to the Editor: Aug. 22 - Arizona Daily Star

News Analysis

The manifold legal moves undertaken against former President Donald Trump, including the FBIs Aug. 8 raid on his home in Mar-a-Lago, Florida, the Jan. 6 hearings, and the investigation of his business dealings led by New York Attorney General Letitia James, break from long-established protocol about not prosecuting presidents after they leave office and are likely to benefit Trumps standing among supporters in the long term, legal experts say.

As a legal matter, none of these various investigations will keep Trump off the ballot. I dont see it as possible that Trump will be disqualified. The only thing that can keep Trump out of the White House will be the voters, Josh Blackman, a professor at South Texas College of Law Houston, told The Epoch Times.

As anticipation grows over a possible 2024 run for reelection, a flurry of legal developments have occurred in recent weeks, including the raid at the start of last week; Trumps arrival in New York two days later to take part in a deposition concerning his business dealings; an order by the district attorney of Fulton County, Georgia, ordering former New York City mayor and Trump lawyer Rudolph Giuliani to appear before a grand jury looking into claims that Trump sought to overturn the results of the 2020 election; and a judges orderon Aug. 18 that part of the affidavit providing a basis for the search warrant used in the Mar-a-Lago raid could be unsealed.

During the New York deposition, one of the latest steps in a years-long civil suit led by James that has also included subpoenas directed at Donald Trump, Jr., and Ivanka Trump, the former president pled his Fifth Amendment right against self-incrimination.

Given that Jamess campaign against the former president is a civil rather than a criminal investigation, the consequences of the Mar-a-Lago raid and the Jan. 6 hearings are potentially of far more significance for Trump and his expected reelection bid, experts say. A great deal more evidence concerning the Mar-a-Lago raid and Trumps alleged mishandling of classified documents is also still expected to come to light, making assessments of the legal basis for the raid premature at this juncture.

But the Constitution clearly sets forth the requirements for a U.S. presidenta minimum age of 35, and having been born in America and lived in the country for at least 14 yearsand Trump obviously meets these requirements, which no one has the legal authority to change arbitrarily, experts note.

Based on the facts now known, the recent moves against the former president are unlikely to damage his reelection bid and may ironically have the effect of motivating undecided voters who find the efforts to prosecute unseemly and not in keeping with traditional approaches to dealing with ex-presidents, they say.

The Mar-a-Lago raid purportedly sought to retrieve documents that federal authorities had requested for months without success. According to a receipt list unsealed on Aug. 12, federal agents seized11 sets of documents with classified markings or that were confidential or secret.

The raid proceeded on the basis of a longstanding attitude on the part of federal law enforcement that sees the presidency in terms of two separate frameworks, Akram Faizer, a professor of law at the Duncan School of Law at Lincoln Memorial University in Harrogate, Tennessee, told The Epoch Times.

Theres the president, who is a person serving for four to eight years, and then theres the office of the president that continues in perpetuity after the president leaves office. And its not fully resolved, but I believe that the governments understanding is that even after a president leaves office, the documents he has are those of the presidency of the United States, not his own. There are good reasons for that, Faizer commented.

The reasons have to do with the safeguarding of sensitive and classified information whose public accessibility would not serve American interests. Here, the reasons for the governments stance rest on a substantial body of past protocol, Faizer argued. Faizer cited the historical example of the Cuban Missile Crisis, in which then-President John F. Kennedy, Jr., persuaded Soviet Premier Nikita Khrushchev to withdraw Russian missiles from Cuba partly through quid-pro-quo negotiations that included an offer to pull U.S. Jupiter missiles from Turkey and Italy, Faizer said. But the content of these negotiations did not immediately come to light and is still not widely known. They were made available to scholars more than three decades later.

The Kennedy administration never disclosed it publicly, and I dont think any subsequent administrations publicly disclosed it as a matter of U.S. policy. Their explanation was that the missiles were getting old and had to be replaced. But the reality is that we withdraw them, and thats important for the office of the presidency. We didnt want to be seen as undermining an ally, or to convey publicly to the world that we were willing to take a haircut on Turkeys security or our own security, Faizer said.

Having said that, the law with regard to the status of classified information is still not fully settled, Faizer acknowledged. From this point of view, Trumps claims to have unilaterally declassified certain of the documents cannot be dismissed, he said.

The law is kind of open-ended as to whether a president can declassify information. The administrative agencies under the presidents control have procedures to declassify, but I think that is not governed by statute but by executive order, Faizer said.

In agreement with Faizer about the latitude given to presidents and the authority of executive orders is H. Jefferson Powell, a professor of law at Duke University and a former deputy assistant attorney general in the Office of Legal Counsel at the Department of Justice.

The actual classification system itself stems from presidential powers. And while administrative law does limit the presidents discretion, it does so mostly through process. The president has the power to do it, the president has the power to undo it, Powell told The Epoch Times.

On the other hand, presidents can be bound by administrative rules that govern the exercise of their executive power, and presidents are regularly bound by statutes that tell them they may do or not do something. There are procedures that must be followed, and the president cant simply wave a magic wand to make it go away, Powell added.

But in the absence of procedural limits, the president can simply say, Im the source of the classification and Im removing it in this case, he continued.

If Trump took action to declassify the documents while still in office, there may not be much that the Justice Department can do, Powell suggested. It is hard from a legal standpoint to go after a former president for anything he did while in office, as some have sought to do for Trumps alleged disclosure of confidential information concerning ISIS to a Russian foreign minister and ambassador during a White House meeting in 2017, said Powell.

Russia is a hostile power, and I dont have any problem with the notion that it is an impeachable offense to compromise American national security. But that ship has sailed. Theres no current practical question about whether Trump might have committed an impeachable offense while in office, Powell continued.

Given these realities, Faizer thinks it highly unlikely, based on the facts now known, that the Mar-a-Lago raid will result in a prosecution and interfere with or prevent a 2024 run.

I dont think theres enough to prosecute Trump. For a prosecution, there has to be some intent to criminality, and I dont see that there. If Merrick Garland wants to prosecute somebody, he has to get a unanimous jury, crystal clear. Thats hard to do even when someone does something wrong, Faizer said.

If you and I had those documents squirreled away in our apartments, then we could be prosecuted, but were not the president or former president of the United States, he added.

In addition to the difficulties in achieving unanimity among jurors, the question stands as to whether pursuing a former president on such grounds is good form. In Faizers view, the political consequences are likelier to play into Trumps hand than those of his enemies.

Its a good thing that, in our countrys history, typically former presidents are left alone. Former presidents are often opposed to the political agendas of their successors. For example, Barack Obama was very anti-Trump, and Trump has been very vocally hostile to President Biden, too, Faizer said.

You dont want the United States to be like Brazil or Pakistan, where once youre out of office, they put you in jail. It argues against a peaceful transition of power. How do you unanimously convict a man who got 75 million votes? Thats a pretty tall order, he added.

Powell concurred with Faizer that going after a former president will give the appearance of impropriety and will not sit well with many of the voters who will ultimately decide what happens in 2024 and beyond.

Did the former president say certain things and disclose information that he shouldnt have? Thats a constitutional and legal question, but its a different kind of question. Those are both separate from the prudential decision about how to run the Department of Justice or the administration. There are things that might otherwise be appropriate that you might not do because it creates a sense in many people that power is being abused, Powell said.

You cant do your job properly if you are constantly not assuming good faith on the part of policymakers. I read a lot of journals where people make statements [about the issue here]. All I know is that I hope Merrick Garland gave full weight to the prudential reasons not to execute a search warrant, he added.

The civil litigation underway against Trump in New York, which is driven by allegations that Trump and his business associates practiced accounting fraud and misstated the value of assets for financial gain, in reality, has self-serving motives of its own, Michael Alcazar, a professor in the Department of Law, Political Science, and Criminal Justice at CUNY, told The Epoch Times.

Letitia Jamess civil suit appears to be politically motivated. A successful case against former President Trump would be a big boon for her career and her current bid for reelection, Alcazar said.

It seems evident to everyone but James that pursuing this case would be futile since Trump exercised his Fifth Amendment rights. Experts believe that without Trumps testimony, there is no meat to her civil case, he continued.

In Alcazars view, James sees Trump as a political enemy and the civil suit is a means of keeping a hostile media spotlight on the former president during the run-up to November 2024.

James may well push ahead with the litigation, but Trumps lawyers are likely to disavow that their client had knowledge of how financial institutions undertook valuations for Trumps real estate, Alcazar predicted.

This will protect their client from a lawsuit from the attorney general, he said.

The Epoch Times has reached out to the Justice Department and Jamess office for comment.

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Michael Washburn is a New York-based reporter who covers U.S. and China-related topics. He has a background in legal and financial journalism, and also writes about arts and culture. Additionally, he is the host of the weekly podcast Reading the Globe. His books include The Uprooted and Other Stories, When We're Grownups, and Stranger, Stranger.

See the rest here:
Attempts to Prosecute Trump 'Not Prudential' and Will Backfire, Legal Experts Say - The Epoch Times

Former President Donald Trump pictured at a Republican campaign event on June 25, 2022 in Mendon, Illinois. (Photo by Michael B. Thomas/Getty Images)

Donald Trump and his family were ordered to testify in the New York Attorney Generals investigation into allegations of fraudulent financial conduct by Trump and the Trump Organization. Although Trump and his children will appear for their depositions, dont expect them to say anything. The smart money is that they will assert the Fifth Amendment and refuse to answer any substantive questions.

Taking the Fifth has become a familiar moniker for all types of witnesses gangsters, politicians, even lawyers and judges. Yes, in a civil trial a jury may draw an adverse inference against a party who takes the Fifth. And, combined with the substantive evidence, a verdict canbe reached against that party resulting from the invocation of the privilege. Thus, there is a significant consequence for taking the Fifth in a courtroom setting. And why shouldnt there be?A party should indeed have the benefit of the adverse partys testimony in a civil case, and the party who refuses to testify should pay the price for that refusal, even if the asserting party is resting his silence on the fundamental constitutional right against self-incrimination, which would be fully protected if it were a criminal trial. That makes total sense!

Is there or should there be a difference in a civil trial? Maybe. Typically, when someone takes the Fifth in a proceeding of interest to the public, the man on the street draws an adverse inference against him, i.e., the person who asserts the Fifth is a bad guy. Why else would he take the Fifth? In fact, Donald Trump himself has publicly articulated this commonly-held view. The mob takes the Fifth, hesaid at a campaign rally in September 2017. If youre innocent, why are you taking the Fifth Amendment? Ironically, Trump himself invoked the Fifth Amendment in 1990, during his bitter and public divorce from his late first wife, Ivana Trump. The real estate mogul took the Fifth to avoid answering questions about adultery, invoking the Fifth a total of 97 times in deposition questions that were mostly about other women. And many remember Senator Joe McCarthy pushing the envelope daily during the Army/McCarthy hearings in the early 50s, actually compelling witnesses to publicly take the Fifth in order to incite the public to vilify them.

Now, though, the shoe is on the other foot the Trump family itself is under the gun. Is the ex-president concerned? Probably not. His thinking on issues like this is quite malleable. He will simply say that he and his family have done nothing wrong, and that this is a political witch hunt, like so many other witch hunts against him, and theyll refuse to play ball. Half the public wont believe him, half will. And, as long as he has his half, he wont really care what the rest think.

So, while Trump may be sui generis and thus not a particularly good model for this discussionhis taking the Fifth does squarely raise the issue: Is it fair for the public to conclude that someone is a bad person simply because they take the Fifth Amendment? Is it reasonable or appropriate to make a negative assessment about someone who asserts a core constitutional right that has been a fundamental backstop against government overreaching since the dawn of the Republic? Put differently, does the rights mere assertion imply badness or wrongdoing, however lawful it clearly may be for any individual to take that tack?

According to public opinion polling, invoking the Fifth Amendment is not necessarily an indication that someone is guilty. In a poll conducted after Trumps legal team indicated the possibility of Trump pleading the Fifth in the Russia investigation, 51% of registered voters said that when someone invokes the Fifth Amendment, it does not usually mean they are guilty, while 36% said it usually does. 42% of Democrats said pleading the Fifth usually implies the person is guilty, compared to 31% of Republicans and 33% of independents who said the same.

Heres the irony. Steve Bannon was convicted of contempt of Congress for refusing to even appear when he was subpoenaed by the U.S. House Select Committee investigating the Jan. 6 attack on the Capitol. Had he simply appeared and asserted the Fifth to every question asked or to not produce protected documents, that would have been the end of the matter with no consequence to him other than the view that many would surely have as a result that he had, indeed, criminally participated in the riot. But he wanted to stand tall and not give an impression of weakness by relying on a constitutional right. He even says now, parenthetically,that if he has to go to jail, so be it!

Were not fans of Bannon. But doesnt it say something about how the public views decisions about someone taking the Fifth? In truth, the public has a perfect right to make that decision but is it fair? In a day when so much of our conduct has been criminalized, and with people often taking the Fifth for noble reasons such as protecting their families or themselves from personal embarrassment or their affiliations with ostracized groups is there anything bad about being a communist or belonging to the NAACP in Alabama? any thoughtful criminal lawyer will almost always counsel her client to take five.

By way of example, as a young prosecutor we sought an interview with a witness. His lawyer, a true Brahmin of the bar with total credibility, told us that his client had done nothing wrong and that the interview would accomplish nothing for us. Still, he would decline. He, indeed, said that if I were representing Jesus Christ himself nowadays, I would have him take the Fifth Amendment. Quite a statement!

But isnt there truth to what this lawyer said to us? Most thinking prosecutors today accept that almost every witnesss lawyer is totally justified in insisting on protection for a clients interview by a prosecutor. If so, why should the public draw the seriously negative inference that it typically does when a witness in an investigatory proceeding takes the Fifth? Yes, Bannon had a reason to resist invoking the Fifth he idealized himself in the martyr role as a Trump loyalist intent on fighting back against the House Select Committee. Most witnesses dont have such motivation. They and even more so their lawyers who advise them simply dont want to risk an overzealous prosecutor using an interview or testimony potentially out of context to make a case against them.

The contrast with Miranda during police interrogations is worth noting. Although police are able to get suspects to waive their Miranda rights in most cases, many suspects are advised by their lawyers not to speak to the police. Would anybody criticize the lawyer for giving this advice? Would anybody believe its bad advice, or that the suspects silence means hes guilty?

Most witnesses simply want to protect themselves and their loved ones. Why should they have to pay the price of the publics clamor against them for exercising a constitutional right? Shouldnt the public be better educated about the limited meaning of ones exercise of the constitutional right that should have no adverse consequences outside a courtroom setting? Yes, a hard-to-estimate but extremely significant number of those who take the Fifth probably have done something wrong that requires it. But what about the rest who assert it for reasons having absolutely nothing to do with being guilty?How often in common parlance do people say Ill take the Fifth when they themselves have done nothing wrong, but simply dont want to answer a question that is, for whatever reason, hard to deal with?

Joel Cohen, a former state and federal prosecutor, practices white collar criminal defense law as Senior Counsel at Stroock & Stroock & Lavan. He is the author of Broken Scales: Reflections On Injustice (ABA Publishing, 2017) and an adjunct professor at both Fordham and Cardozo Law Schools.

Bennett Gershman is a Professor of Law at the Elisabeth Haub School of Law at Pace University, a former prosecutor in the Manhattan District Attorneys Office, and a Special Assistant Attorney General in New York States Anti-Corruption Office.

This is an opinion piece. The views expressed in this article are those of just the author.

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If Trump Takes the Fifth, Is He Guilty? - Law & Crime