WaPo Misstates 5th Amendment Law.

I have previously commented on legal misstatements by Jennifer Rubin of the Washington Post. Truly, I’m not obsessed with picking on her, but this one really stands out and could ill advise lay people of their rights. In an August 7, 2018 opinion piece Ms. Rubin discusses President’s Trump’s tweet improvidently admitting his son’s Trump Tower meeting with Russians was to get dirt on Hillary Clinton.

The thrust of Rubin’s article, that this tweet complicates the President’s legal position in the case, and undermine’s his arguments to avoid being deposed by Mueller, is correct. However, Ms. Rubin claims:

“to the extent Trump ever contemplated invoking the Fifth Amendment protection against self-incrimination, his public statements have now waived that right. He cannot refuse to talk under oath if he has talked about it openly.”

This statement by Ms. Rubin is simply false. Neither that tweet by Trump, or any other public comments by him, have (or could) waive his 5th Amendment right. He can still invoke that right, even for explaining that tweet, should he desire to do so. Certainly, the tweet itself might be used as evidence against him, but Trump still cannot be compelled to testify about it.

Public statements do not waive your 5th Amendment rights. Talking to the police does not waive your ability to assert the 5th Amendment at anytime. You can sit down with the police and talk, and talk, (and certainly those comments can be used against you), and at some point you can just decide you don’t like how the conversation is going. You can stop talking, advise the cops you want to invoke your 5th Amendment rights from here on, and demand to see counsel.

You absolutely can refuse to talk about it under oath if you have talked about it openly while not under oath. Certainly those unsworn statements might be used against you, but they do not serve as a basis to compel any defendant (or possible defendant) to testify in a criminal trial proceeding under oath about anything.

Indeed, even if under oath, testifying before a grand jury, you can stop answering and invoke your 5th Amendment right at any time, no matter for how long you have testified.

Of course there is a time when you can waive your right by starting to talk. That time is at trial. If you waive your 5th Amendment rights at trial, and testify under direct examination, you must submit yourself to cross examination. Under cross examination you must answer and you will have no 5th Amendment privilege.

You are not allowed to just get up, and say what you want heard, without having that testimony challenged by cross examination. For example, if Paul Manafort takes the stand in his trial, he cannot invoke the 5th Amendment when prosecutors seek to question him under cross examination.

That appears to be what Ms. Rubin was thinking of, but tweets are not testimony in the middle of a criminal trial.

I call upon Ms. Rubin and the Washington Post to issue a correction in this regard.

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