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It was nearly six years ago when Donald Trump made a comment at a Florida rally he probably wishes he could take back.

The mob takes the Fifth Amendment, the then-candidate said at the time, deriding those who assert their right against self-incrimination. If youre innocent, why are you taking the Fifth Amendment?

It was a rhetorical question that came to mind during yesterdays Jan. 6 committee hearing, as Vice Chair Liz Cheney thanked the witnesses for participating in the proceedings. From the transcript:

[I]ts been an honor to spend time with you and with our previous witnesses here today. To date, more than 30 witnesses called before this committee have not done what youve done, but have invoked their Fifth Amendment rights against self-incrimination.

That number stood out, in part because its such a large total, and in part because its much higher than we previously knew.

Circling back to our earlier coverage, there are several high-profile figures from Team Trump whom we already knew pleaded the Fifth:

If Cheneys comments were accurate, however, were not talking about five people from Team Trump who were concerned about giving self-incriminating answers; were talking about 30 such people.

To be sure, Americans have these rights under the Constitution. If members of the former presidents team have reason to be concerned about possible prosecution, its not too surprising that their legal counsel would encourage them to invoke their Fifth Amendment rights.

Whats more, its also worth noting that Cheney wasnt specific about who these people were, and its at least possible that some of the group didnt work for the Trump administration or the former presidents political operation.

Nevertheless, it now appears that the total number of people taking the Fifth is much higher than previously known.

As for the context, the top Republican quickly added that she has a specific witness in mind whom shes eager to speak with.

The American people have not yet heard from Mr. Trumps former White House counsel, Pat Cipollone, Cheney said. Our committee is certain that Donald Trump does not want Mr. Cipollone to testify here. Indeed, our evidence shows that Mr. Cipollone and his office tried to do what was right. They tried to stop a number of President Trumps plans for Jan. 6. Today and in our coming hearings you will hear testimony from other Trump White House staff explaining what Mr. Cipollone said and did including on January 6th. But we think the American people deserve to hear from Mr. Cipollone personally.

A person close to Cipollone told NBC News late yesterday, Pat has been cooperative with the committee with President Trumps permission, but there are serious institutional concerns and privilege issues and those have been recognized by the committee.

Watch this space.

The House Jan. 6 committee is holding its fifth public hearing on Thursday, June 23 at 3 p.m. ET. Get expert analysis in real-time on our liveblog atmsnbc.com/jan6hearings.

Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MSNBC political contributor. He's also the bestselling author of "The Impostors: How Republicans Quit Governing and Seized American Politics."

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How many Trump insiders pleaded the Fifth in the Jan. 6 probe? - MSNBC

FOX News contributor Andy McCarthy reacts to Thursday's January 6th Committee hearing: "The last thing that Representative Cheney did was point out is that Jeff Clark took the Fifth when he was asked the same questions that they were asking the witnesses. If a prosecutor brought that out in a trial, that would be a mistrial. That's like a basic constitutional due process violation. For the life of me, I continue not to understand not only why this committee would not present a different perspective when they have witnesses that could clearly deal with cross examination if there were cross examination. And then why do this very powerful presentation, which I think this last hour certainly was, and then at the end point out that people are taking the Fifth Amendment which they have a constitutional entitlement to do and the courts have said if you let that infect a fact-finding proceeding, it's a constitutional violation. I don't understand it."

Originally posted here:
Andy McCarthy: Cheney Pointing Out A Witness Taking The Fifth Amendment Is A Basic Constitutional Violation - RealClearPolitics

FLINT, MI -- One way or another, Rick Snyder will answer questions under oath about his role in the Flint water crisis in a federal courtroom on June 30.

And if, as expected, the former governor invokes his Fifth Amendment right not to incriminate himself, attorneys involved in the civil bellwether trial will turn to the next-best thing -- hours of previously unheard videotaped deposition testimony given by Snyder two years ago.

Attorneys for Veolia North America said Wednesday, June 22, that they intend to call Snyder to the witness stand on June 30 and an attorney for Snyder told MLive-The Flint Journal that his client will be present but has been advised not to answer questions.

Snyder is among nine indicted current and former city and state employees facing criminal charges tied to the water crisis. Five of those nine have also been called as witnesses in the civil trial that started 19 weeks ago in U.S. District Court in Ann Arbor.

Snyder and the four other potential witnesses were ordered to appear in court and to answer questions they were asked during their depositions by Judge Judith E. Levy, but each has appealed her decision to the U.S. Court of Appeals.

The Sixth Circuit Court of Appeals has scheduled oral arguments on the issue of whether the five men waived their Fifth Amendment rights when they sat for depositions but not until late July when the civil trial is expected to have concluded.

Attorneys for Snyder, former Flint emergency managers Gerald Ambrose and Darnell Earley, former Snyder aide Richard Baird, and former Flint Department of Public Works Director Howard Croft have said their clients will invoke the 5th Amendment when called to testify unless required to by the Court of Appeals.

Each of the five testified in depositions before they were charged with crimes in January 2021.

The civil case Levy is presiding over involves four Flint children who have sued Veolia and Lockwood, Andrews & Newnam for professional negligence.

The companies each advised the city during the water crisis, and attorneys for the children claim they are partially responsible for injuries their clients suffered after drinking Flint water, which had elevated levels of lead.

Veolia and LAN dispute the childrens injuries and have said government officials like Snyder are solely responsible for any damages they suffered.

Snyders testimony -- in person or through the use of his deposition -- should provide new information about the former governors knowledge of the extent of problems with Flints water system while he led state government in 2014 and 2015.

Hes said previously that the water crisis was a failure of government at all levels but has only publicly answered detailed questions about the situation in an appearance before the U.S. House Committee on Government Oversight and Reform six years ago.

In that testimony, Snyder said he was repeatedly assured by state environmental officials that Flints water was safe to drink even as residents insisted something was wrong with its color, taste and smell after the citys water source was switched from Lake Huron to the Flint River for 17 months in 2014 and 2015.

An expert at the U.S. Environmental Protection Agency tried to raise an alarm about the potential for lead contamination in the water system but was silenced, and Snyder has said he only learned that our state experts were wrong (and) Flints water had dangerous levels of lead in October 2015.

Attorneys for the companies are particularly interested in putting Snyder and the other criminal defendants in front of the jury because their answers, including their refusal to testify, can be considered as jurors determine what degree of responsibility -- if any -- the consultants have for damages related to the water crisis.

Levey said earlier this month that she plans to handle that questioning of Snyder as she did when Ambrose and Croft appeared in court -- outside the presence of the jury -- invoking their 5th Amendment rights, and triggering the playing of their videotaped depositions for the jury.

On Wednesday, a part of Earleys deposition was also played for the jury, and the judge has said Ambrose, Croft, Earley, Baird and Snyder will each be required to appear in person with the jury present to tell them they wont answer questions that could later be used against them in their criminal cases.

Ambrose is expected to be the first of the five to appear before Levy with the jury present on Tuesday, June 28.

Snyder was charged in January 2021 with two misdemeanor counts of willful neglect of duty. His case is pending in Genesee District Court.

Earlier this month, a Veolia spokesman said the company was committed to bringing to the stand indicted officials such as Governor Snyder, former (Flint) Emergency Manager Darnell Earley, and other government officials so that Flint families and the public can finally hear the truth.

Read more at The Flint Journal:

Snyder can refuse to answer Flint water questions but only in front of jury

Former Flint water consultant vows to deliver Snyders testimony

Court of Appeals will hear Snyders arguments not to testify in Flint water case

Excerpt from:
Snyder to appear before Flint water crisis jury on June 30. Heres what to expect - MLive.com

On Tuesday, members of the Crow Tribe filed a lawsuit in D.C. District Court against the United States Department of the Interior, its Secretary and the Assistant United States Secretary of the Interior for Indian Affairs alleging violations of the Administrative Procedures Act, the Due Process Clause of the Fifth Amendment and breach of fiduciary duty.

According to the complaint, the Crow Tribe is a federally recognized tribe in eastern Montana. Further, the complaint states that the 1920 Crow Allotment Act places Crow reservation lands into individual tracts to be held in trust by the United States for every enrolled member of the Crow Tribe. The complaint purports that under the Crow Allotment Act and the federal common law Winters Doctrine members of the Crow Tribe are also allotted a portion of the Crow Reservations water rights to irrigate practicably irrigable acres.

The complaint further states that in 2010 Congress passed the 2010 Settlement Act which abandoned the water rights allotted to Tribe members and required the Tribe to adopt a Tribal Water Code, including a licensing and permitting system governing the allocation and distribution of water rights. The Tribe members purports that once a tribal Water code has been adopted the Secretary of the Interior is required to approve the tribal water code within a reasonable period of time after the Tribe submits it to the Secretary.

However, the complaint states that the Crow Tribe has never adopted a Tribal Water Code and thus the Tribes members have been deprived of their water rights under the Winters Doctrine without due process of law, just compensation, or for a public purpose as required by the Fifth Amendment.

Additionally, the Tribe members argue that the United States has breached its fiduciary duty to protect the Crow Tribe and its members allotments and interests under the Winters Doctrine. The Tribe members argue that the United States has breached its fiduciary duty and has been subject to egregious conflicts of interest with respect to its duty to the Tribe.

Accordingly, the complaint states that on May 15, 2014, Crow Tribe members filed a lawsuit seeking broad equitable relief, including declaratory and injunctive relief, against the Interior Department for violations of the fiduciary obligations of the United States. However, the complaint states that the Montana Water Court, the Montana Supreme Court, the District Court for Montana and the Ninth Circuit Court of Appeals denied the Tribe members objects and complaints stating that the Tribe members failed to assert a claim on which relief could be granted.

Nonetheless, Tribe members filed the present lawsuit seeking declaratory judgment that the 2010 Crow Settlement Act is void, the Tribe members have water rights under the Winters Doctrine and that the United States breached its fiduciary duty to the Crown Tribe members. The plaintiffs are represented by Barnhouse Keegan Solimon & West LLP, and the Law Offices of Thomas E. Luebben PC.

More here:
Members of the Crow Tribe Sue Department of the Interior Seeking to Void 2010 Settlement Act - Law Street Media

One of the biggest fears that 3Ls have, in addition to flunking the bar exam, is flunking the character and fitness assessment for admission to the bar. This requirement may well be a reason those in law school and who have already graduated are reluctant to seek mental health services for fear of being rejected for admission on those grounds. And if that is the case, for even one law student or law school graduate, it is one too many.

The Legal Profession Blog reports on two changes that the Supreme Court of Ohio is considering.

Presently included in the fitness evaluation is whether there is any evidence of mental or psychological disorder that in any way affects or, if untreated, could affect the applicants ability to practice law in a competent and professional manner. The proposed rule change would eliminate that from an extensive list of factors when considering character and fitness for admission. A good first step that hopefully other jurisdictions will follow. For way too long, getting help for whatever reasons at whatever point in time, mental health concerns have been seen as a sign of weakness, both pre-bar admission and post. Too many deaths by suicide, so many cases of depression and substance abuse, and other mental health concerns may be changing that view or, at least, raising long overdue awareness. Not a moment too soon.

Another change that the Ohio Supreme Court proposes is to add as prohibited criteria to consideration of fitness to practice gender, sexual orientation, and marital status. Existing prohibited criteria already include age, race, color, national origin, and religion. Good idea to expand the prohibitions since, since I didnt know that any of those listed have anything to do with the ability to practice law.

Maybe, just maybe, our profession needs to open our eyes to the possibility that good lawyers, those who make a positive difference in society, can come from all sorts of backgrounds and not just from the traditional go to college, go to law school, pass the bar, and start practicing wherever you can land a job. There are those who have been incarcerated, graduated law school, passed the bar, and are practicing.

Maureen Oyenlobi, who is serving a life sentence, starts at ABA-approved Mitchell Hamlines online law school this fall. Convicted under Minnesotas felony murder rule, her appeals have been repeatedly denied while the shooter was sentenced to only 40 years and is eligible for parole. Disparity in sentencing based on sex? Nope, the felony murder rule is apparently at play here. I would bet that Oyenlobi will have a better understanding of the Constitution than certain others.

Did anyone watch John Eastmans testimony, if you could call it that, before investigators of the House January 6 Committee? He invoked the Fifth Amendment scores of times and apparently asked Rudy Giuliani to see if the outgoing president would consider him for a pardon. Pardon me. The transformation of Eastman from an exuberant rah-rah lets go on January 6, 2021, to the schlubby-looking dude sitting next to his counsel during his testimony was a study in contrasts. Perhaps he realized when testifying that he now has a deck chair on the Titanic. Eastman has apparently been kicked to the curb by our former prez. Cheer up, you are not the first one to be so treated and undoubtedly not the last. Just ask other attorneys that Trump has treated similarly over time. Does the name Rudy Giuliani come to mind?

Didnt anyone ever tell Eastman that a lawyer should not get involved in the clients mishigas? You advocate for the clients position (if and only if its grounded in law or a reasonable extension thereof and always fret about the possibility of Rule 11 sanctions). Where has Eastman been for the past decade or so? Didnt he know or shouldnt he have surmised that the words the former prez lives by are whats in it for me?

I am always amused, if thats the right word (and I am not sure it is), that peeps who think they can trash the Constitution when it serves their purposes are the first in line to claim rights (such as the Fifth, and Im looking at you, Eastman) when needed. Its akin to the person who kills both parents and asks for mercy from the court because hes an orphan.

The State Bar of California is investigating Eastman. With any luck at all, he will be enshrined in the State Bar rogues gallery of bad boys, along with Tom Girardi and Michael Avenatti. And please dont tell me that its the water in SoCal that these guys drank. We dont have any.

Considering the emotional testimony of the disgusting and unwarranted harassment of the two Georgia election volunteer workers, there is no such thing as the Golden Rule in Trumpland, nor would I expect there to be, nor is there any shame there in using whatever tactics are available on the theory that the ends justify the means. As bad as the conduct of Girardi and Avenatti has been, I hope the State Bar disbars Eastman for his conduct in trying to overturn the Constitution to suit one mans rapacious needs. If not disbarred, then the oath we all have taken to support the Constitution will have been an empty one.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. Shes had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact its not always civil. You can reach her by email at oldladylawyer@gmail.com.

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From Admission To Discipline And The Choices We Make In Between - Above the Law