You do NOT “plead the fifth” -you invoke it. Period. Full Stop. Updated with Meadows lawsuit against Speaker Pelosi

Anytime I see/hear someone incorrectly stating “he/she is going to plead the fifth” I cringe because it’s not just factually incorrect it also indicates person(s) are painfully uninformed.

Dec 08, 2021

Updated December 8, 2021 at 5:45PM

Guys you do understand that I actually have a full time job, right? But as luck would have it -I had 15 minutes in between meetings. See DDC-ECF https://ecf.dcd.uscourts.gov/doc1/04518935396 a preliminary and quick read of the complaint -I am literally stifling my laughter -also I’m not trying to be a jerk which is why I redacted Meadows’ Home Address

Here I saved you $3 and uploaded the newly filed complaint to my Scribd account https://www.scribd.com/document/545638147/Meadows-v-Pelosi-Re-Jan6th-Subpoenas -because COME ON? A civil rights complaint….GTFOH with that nonsense and perhaps we should start asking who’s paying Marky-Mark’s legal expenses. Gotta dash to my 5:45 nut cracking meeting I’m about to wreck a few lawmakers day, possibly their entire week - see ya after 11PM or sooner if I decide to use a hotel room rented out by my employer/client

Yay it’s almost 3PM and I’m sitting in the General Assembly’s anteroom. Luckily it has WiFi. My afternoon meetings were rescheduled to 4PM today, so I had a few free moments and thought that my readers might benefit from this article…

What is the Fifth Amendment…

and why has the false “pop culture” narrative that “you plead the fifth” continues to permeate recent discussions. Understand the narrative isn’t just factually incorrect, but it is also intellectually dishonest. Any serious person who works in the legal community knows just how uniformed this phrase is. I suppose we can thank Hollywood -for their fictionalization of “pleading the fifth”…And the invocation of this phrase does in fact drive some of us bonkers because for the umpteenth time;

You invoke the fifth amendment protections to specific question(s) asked. This amendment does NOT offer a blanket protection..

Mainly because so many incorrectly say “plead the fifth” …it is important to understand that our Judicial system inherited the principle of stare decisis -which loosely translates to: “let it stand” as noted by Article III of our Constitution

ArtIII.S1.1.1.2.4.1 Doctrine of Stare Decisis

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

To be clear Stare Decisis will play a major role in the upcoming SCOTUS arguments and subsequent ruling. As you know SCOTUS has agreed to hear argument concerning the onerous Alabama Abortion law. You can read the full SCOTUS docket here

Ironically SCOTUS -in their attempt to correct nearly “a century of error” -see Pollock v. Farmers' Loan & Trust Co (1865) Thereafter SCOTUS continued to weaken Stare Decisis Doctrine, see Patterson v. McLean Credit Union, 491 U.S. 164, 171–175 (1989), also see See also Flood v. Kuhn, 407 U.S. 258 (1972)

Now that you have an understanding of the origins of our Judicial System. Let’s drill down on the Fifth Amendment of our Constitution, which reads in part:

https://constitution.congress.gov/constitution/amendment-5/

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 just compensation.

As you can see the fifth amendment1 offers a few protections as it relates to criminal procedure concepts/doctrines that are baked in to the fifth Amendment. Colloquially most know about the Miranda rights as affirmed by SCOTUS 2

But for the purpose of this discussion let’s actually focus on the fifth amendment rights/protections. Ironically the intent of the fifth amendment was to protect the innocent whereas in popular pop culture only “guilty people invoke the fifth Amendment” ←again this false and factually incorrect narrative, which has been grossly factionalized. Resulting in many Americans believing that you “plead the fifth” and that “only guilty individuals assert the fifth”… none of which is accurate. Below are a few high level take aways:

“right to remain silent”,
“5th amendment privilege”,
“right against self incrimination”
“double jeopardy”

If you opt for the TL:DR option -well luckily for you our Federal Courts published a Fifth Amendment Word Cloud

Fifth Amendment Word Cloud via US Courts

If you understand our Country’s very complex and sometimes uncomfortable history. Generally speaking our Judicial system largely adopted most of the common law of England procedures. Meaning America’s judicial system is largely grounded in the principles of “common law” —although we did make a few deviations. Nearly every single state in our Republic (sans Louisiana) adopted “reception statutes” -

I’m not a violent person, per say… but there are times that I genuinely want to reach through the internet and slap the deep stupid out of Blue-QANON. Many of whom lack a modicum of common sense, and facts are typical secondary to the Blue-QANON fictitious and arguably laughable uninformed prognostications. Thusly they are circling the drain of deep stupid and regularly engaged in self beclownment ←not actually a word but it should be —given it’s a perfect description of some individuals who continually traffic in disinformation.

They continue to lie & misinform thousands of their followers the “chill counterintelligence got this” or the trite “Trump + Mob + More Mob = Trump’s going down” or “guys Mueller’s got this” —my assessment is these individuals need their dopamine fix. Like any junkie they need the Twitter engagements, to feed their insatiable appetite to be relevant and important. Imagine being that insecure or damaged in the head, that your entire life is dictated by social media. You can’t actually get a real job because you’re unemployable. At times this can be frustrating because I think most Americans just want the facts and truth, unfiltered and unabridged. My atonement for ever believing these individuals (for nearly two years) is to call out their Blue-QANON-sense, any chance I get

House Select Committee on Jan6th & witnesses

To be clear you can disagree with my assessments and I won’t take it personally. If we rewind the clock back to early 2017 —I repeatedly tweeted that Congress should examine every single case Trump has been involved with irrespective if he was the defendant or plaintiff.

Given that Roy Cohn was his mentor. Trump uses our Judicial System for his own benefit (that assertion was made by some Spicy Mic on January 21, 2017) For the record it was my second tweet ever tweeted. This is basic stuff. To fully understand your opponent. you need to review their past conduct. In really simple terms in early 2017 I opined that Trump will default to his known modus operandi, which I affectionately coined the moniker “Triple D” is meaning here’s what Trump’s vast judicial history shows:

Delay
Distract
Deny

Trump’s Triple D strategy has worked well for him (and his father), case in point one only needs to read the FBI Vault file (unless otherwise specified the following embedded links are directly from the FBI Vault)

https://vault.fbi.gov

In October of 2016 the FBI released Fred C. Trump (1905-1999) was a real estate developer and philanthropist. This release consists of references dated from 1966 and 1991 to Mr. Trump from FBI files. I personally found Part 05 thru 08 a fascinating read …

Also in 2017 the FBI Vault further published records concerning Trump’s various (and largely failed) business ventures:

Trump Shuttle
Trump Taj Mahal
Trump Organization published by FBI Vault in March 2019 -this tranche of documents focused on an 1986 FBI investigation into the Trump Org

Trump & his insurrection minions, OLC & Congress

Again you are more than welcomed to disagree with me — while some are losing their marbles that Congress isn’t acting aggressively enough or that the DOJ is giving Trump a pass. You do understand that diametrically opposed facts can simultaneously be true. Even as the Committee issues subpoenas, there’s literally no guarantee that witnesses will cooperate with a lawful Congressional Investigation.

Meaning that the House needs to have several contingency plans. Even if a hostile witness agrees to a “transcribed interview” aka a deposition —Congress has zero power or authority to compel a witness to answer questions. Although it is possible that Congress could extend immunity - my retort; that’s great but are you not aware of the numerous DOJ OLC Memorandums? 4

The DOJ-OLC May 20, 2019 Testimonial Immunity Before Congress of the Former Counsel to the President which USCA-DC later opined that McGahn is not immune from complying with a lawful Congressional Subpoena
The DOJ-OLC July 19, 2019 Testimonial Immunity Before Congress of the Assistant to the President and Senior Counselor to the President
which reads in part:

..we conclude that Ms. Conway is absolutely immune from compelled congressional testimony in her capacity as a senior adviser to the President…we reaffirmed that “Congress may not constitutionally compel the President’s senior advisers to testify about their official duties.” Testimonial Immunity Before Congress of the For- mer Counsel to the President, 43 Op. O.L.C. __, *1 (May 20, 2019)

Immunity of the Assistant to the President and Director of the Office of Political Strategy and Outreach From Congressional Subpoena - July 14, 2014
Immunity of the Former Counsel to the President From Compelled Congressional Testimony - July 10, 2007
Immunity of the Former Counsel to the President From Compelled Congressional Testimony (which was a progeny of the Reinquest Memorandum) September 1996

As for former Chief of Staff and likely co-conspirator Mark Meadows -we know for a fact (because it is literally a matter of public record) the Committee wrote to Meadows’ attorney and the Committee was unambiguous:

…October 7, 2021, you have indicated that Mr. Meadows “is immune from compelled congressional testimony on matters related to his official responsibilities.” That position is based on Department of Justice Office of Legal Counsel (“OLC”) opinions in which OLC has advised past presidents to claim that senior advisors cannot be required to provide testimony to Congress about official actions…. Do not justify Mr. Meadows’s refusal to provide the Select Committee information about one of the most significant events in our Nation’s history.

not to belabor the point (this is why it’s important to read documents in the public domain -case in point see the following paragraph on page 2 of the November 11, 2021 letter to Meadows via his attorney:

…November 11, 2021, you received the attached letter from the White House Counsel’s Office addressing your previously stated concern that “Mr. Meadows has not received any contrary instruction from the current Administration.”

The White House Counsel’s letter clearly explains the current President’s position: “[t]he President believes that the constitutional protections of executive privilege should not be used to shield information reflecting an effort to subvert the Constitution itself, and indeed believes that such an assertion in this circumstance would be at odds with the principles that underlie the privilege.”
… your client has now been advised that (i) “an assertion of privilege is not justified with respect to testimony and documents” relevant to the Select Committee’s investigation, and (ii) the President will not be asserting any claims of executive privilege or testimonial immunity regarding subjects about which the Select Committee seeks documents and testimony from Mr. Meadows

Summary & forward outlook

The fact is we have three co-equal branches of Government. Irrespective of the Trump Administration’s nearly four years of complete stonewalling and overt attempts to usurp the power our Constitution vests with the two other coequal branches of Government. In non-legalese Trump & his Administration’s predictable playbook: Triple D because I had previously and repeatedly tweeted that Trump is “running the 116th Congressional clock down” as part of his Triple D strategy -and I’m pretty sure the McGahn subpoena was in fact ground zero of how Trump would react. So here we are in 2021, we all saw thousands of domestic terrorist, of which Trump largely radicalized, attack our Democracy, hundreds of law enforcement officers put their bodies on the line to protect our Democracy —yet Trump and his acolytes continue to: Delay, Distract and Deny.

If someone asked me - okay what should Congress do to compel testimony: my response would be: 1) understand how your opponent weaponized the DOJ and more broadly our judicial system, anticipate your opponent’s 10-15 future moves on a chess board, 2) negotiations behind closed doors is an exercise in futility, 3) hold back to back public hearings, if there’s an empty chair, so be it, 4) you are dealing with Trump who’s authoritarian tendency nearly destroyed our Democracy, 5) lastly (arguably) most importantly;

The 117th Congress’ Clock is ticking -use your time wisely. You have 394 days…

Which does not include the various House Recesses (district days), Holidays or weekends. Time is of the essence and it time for the Committee to understand Trump is playing you. He’s banking on his Triple D strategy. He knows the there are roughly 396 days before the 118th Congress is sworn in …and we all know what happens to subpoenas once a new Congress is sworn in…

As it relates to Mark Meadows -my suggestion is the Committee should obtain copies of his new book. Make sure that every Committee member, the committee’s Attorneys & support staff have read it. Focus on areas where neither Trump or Meadows would invoke privilege. The Committee should publish the questions you would like Meadows to answer. Why? Easy Meadows has already provided the Committee with more than 6,000 pages and no Executive Privilege was invoked.

Hugo Lowell @hugolowell

Wow — Jan. 6 committee obtained from Trump WH chief Meadows a Jan. 5 email of a 38-page PowerPoint for “Options for 6 JAN” and certain text messages from his personal cellphone he relinquished after Jan. 6

But doing negotiations behind closed doors - when did Congress start negotiating with Domestic Terrorist or those who radicalized the Domestic Terrorist? Trump & his minions disrespect for our three co-equal branches of Government, our Constitution, and our Rule of Law… the Committee needs to take their gloves off and open the curtains so the public can see how Trump et al are disrespecting our Democracy and everything our Country stands for.

Lest we forget Trump & his sycophants radicalized hundreds of thousands of Americans…

And on January 6, 2021 Donald Trump told them where to go, what to demand and encourage (incited) violence. Period. Full Stop.

Lastly if the Committee and more broadly the House of Representatives continues down this path of “old school DC rules”, then they are giving Trump leverage to have the 2022 midterms be a complete referendum on “the radical & unhinged left” -the House and Select Committee need to let the American people see and hear Trump et al’s egregious and indefensible stonewalling. January 6, 2021 was a deadly Domestic Terror attack. Period

-Filey

PS -I know that some of my readers are aware of the House Document Repository but in the event you are unaware: https://docs.house.gov/

Updates and Document dump regarding Jeffery Clark

HRPT-117-HRept117-200.pdf “The form of the Resolution that the Select Committee to Inves- tigate the January 6th Attack on the United States Capitol would recommend to the House of Representatives for citing Jeffrey Bossert Clark for contempt of Congress”
HMTG-117-IJ00-20211201-SD001-U1. -All communications with former President Tmmp, former Chief Staff to the President Mark Meadows, or other individual who worked in the White House complex
Actual subpoena served on Jeffrey Clark - the good stuff can be found starting on page 5 - entitled “schedule”
November 5, 2021 Transcript of Jeffrey Clark’s deposition before the House Select Committee on Jan6th
HRPT-117-NA - follow up Committee Report on holding Jeffrey Clark in Contempt of Congress

You can read the House Select Committee on January 6th as it relates to Jeffrey Clark - I certainly hope the House Judiciary Committee makes a referral to the DC Bar of which Clark has a license to practice law. A few months ago the Senate Judiciary made such a referral as did Lawyers Defending American Democracy (LDAD), which filed a formal disciplinary complaint “Clark’s exhortations to engage the DOJ in the false assertion that the election results were tainted by fraud violated ethical rules governing members of the D.C. Bar.”

You can access the Select Committee on Jan6th file. Leading up to December 1l 2021 Committee Vote to hold Jeffery Clark in contempt of Congress, the committee uploaded a large file of documents, I’d pay close attention to exhibits 10 thru 14 -these are the underlying Committee documents concerning the obvious obstruction by Jeffrey Clark - who’s an officer of the Court and candidly he should face an Bar ethics panel. You swore an oath Jeff -you want to remain in good standing with the DC bar? Then stop being an obstructionist stooge to Trump

(whispers he’s not going to pay the mounting legal bills you are facing and frankly I hope this leads to your financial insolvency. Sedition has consequences Jeff…)

Also, full disclosure I might update this article after my work day ends which will likely occur after 11PM tonight -but I have to make my way to a Commission chamber because apparently my “fix your shit” email didn’t actually act as a catalyst to ameliorate the deficiencies in the proposed legislative language…

Katharine B. Hazlett, J.D., The Nineteenth Century Origins of the Fifth Amendment Privilege Against Self-Incrimination, American Journal of Legal History, Volume 42, Issue 3, July 1998, Pages 235–260, https://doi.org/10.2307/846176 -last accessed December 6, 2021

See Miranda v. Arizona Adults in police custody and due process rights and see J.D.B. v. North Carolina -Juveniles in police custody and due process rights. Both last accessed on December 7, 2031

In January of 2016 the Washington Post published an extensive investigative report: Inside the government’s racial bias case against Donald Trump’s company, and how he fought it -last accessed on December 6, 2021 —The Post Report put a lot of context and contours into the hundreds of pages the FBI Vault later published in February 2017.

I highly recommend you read this research paper by Emily Berman, Weaponizing the Office of Legal Counsel, 62 B.C. L. Rev. 515 (2021) https://lawdigitalcommons.bc.edu/bclr/vol62/iss2/4 -last accessed December 6, 2021

Jonji

Dec 8, 2021

Grateful for legal explanations!

Expand full comment

1 reply by File411

Christopher Burgess

The piece is comprehensive and complete. The only thing missing is what we are witnessing is the "whine." My hope is they drag their sorry asses in, anyway, and force them to invoke the 5th for specific questions, they won't come in and therefore the contempt charges follow and the wheels of justice will roll forward (albeit not at lightening speed). My hope is that we, (all of us non-legal minds) do not permanently suffer from the fatigue of the wait and Triple-D cumulative actions.

BTW - I agree re invoking the 5th - Prove your case w/o me giving you a stick to beat me with.

7 replies by File411 and others

15 more comments...

File411’s Newsletter

Discussion about this post