"The Fifth." That's what defense lawyers call it. Donald Trump himself spoke disdainfully of those protections during the 2016 presidential campaign, in reference to Clinton campaign staffers who had taken the Fifth to avoid testifying about Clinton's famed email server. At an Iowa campaign rally he said, "The mob takes the Fifth. If you're innocent, why are you taking the Fifth Amendment?"
Donald Trump himself provided one answer during his bitter and very public divorce from his first wife, Ivana. According to investigative reporter Wayne Barrett's book, "Trump: The Greatest Show on Earth," he invoked his protections under the famed amendment 97 times to avoid answering questions about his affairs with women who were not his wife. Barrett quoted Trump as saying the Fifth Amendment was his "favorite."
But as Jeffrey Clark is about to learn, the Fifth Amendment may protect you from self-incrimination, but it doesn't protect you from being indicted and possibly convicted for committing a crime. The first crime Clark may be charged with is contempt of Congress, for which former Trump aide Steve Bannon has already been indicted. Both men are seeking to avoid giving testimony to the Jan. 6 committee on their parts in Trump's attempts to overturn the election results on the day Electoral College ballots were to be counted and certified by the Congress.
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Attempting to overturn the results of an election is a federal crime. It is defined in the law as fraud against the government of the United States. Donald Trump himself may face indictment for his attempt during a phone call to convince Georgia Secretary of State Brad Raffensberger to "find" enough votes to reverse the outcome of the presidential election in that state. "Finding" votes that were not cast is fraud, and it is a crime. Conspiring with another person to do that is another crime. Making a phone call in furtherance of that conspiracy is yet another crime: wire fraud.
Trump very possibly committed the same sort of crime when, in November of 2020, he invited Michigan state legislative leaders to the White House and tried to get them to hold a vote in the state legislature to appoint new electors who would overturn the will of the voters in Michigan. In December of 2020, Trump summoned Pennsylvania state legislators to the White House after calling in to a hearing held by Republican legislators in Gettysburg to claim that he "won Pennsylvania by a lot." (Democrat Joe Biden actually won the state by 80,555 votes, giving him Pennsylvania's 20 electoral votes.)
The problem with committing crimes is that you may be indicted and tried and convicted and sent to jail. If you are charged with committing a crime such as fraud against the government of the United States, you will find yourself in the hands of a federal judge. This is where the Republican campaign to appoint and confirm federal judges comes in. The Republican Party has spent the last 40 years fixing federal judgeships around the country to their liking. Conservatives even established a non-governmental organization to vet, train, and recommend candidates for judgeships. It is called the Federalist Society. Until now, most legal observers have thought of the Republican effort to dominate the federal judiciary as essentially ideological: The Federalist Society has an avowed purpose of putting "conservative" judges on the federal bench.
But ideology takes you only so far. That was evident in the Supreme Court hearing on the key abortion rights case this past week, Dobbs v Jackson Women's Health Organization. We were treated last Wednesday morning to what amounted to a judicial treasure hunt. Under which rock, behind which bush, in which crack in a wall can we find our justification for overturning Roe v. Wade?
Each justice had a favorite rock to turn over. Justice Brett Kavanaugh seemed to think that he could find the Constitution's "neutrality" on the issue of abortion in the absence of the word from the text of the document. Justice Sam Alito espoused the idea that abortion wasn't legal in any state at the time the 14th Amendment was adopted, so that amendment's guarantee of equal protection under the law did not apply. Justice Amy Coney Barrett, who has seven children, two of whom were adopted, seemed fixated on the idea that equality between men and women was not an issue, because women who bore children did not have to face being kept out of the workforce by motherhood because they could always choose to take advantage of "safe haven" laws and put the child they gave birth to up for adoption, thus getting the nettlesome infant out of the way. Justice Clarence Thomas seemed satisfied to rest on his longtime obsession that women should bear the consequences of childbirth because they were the ones who decided to have sex. He had no interest in the fact that rape did not involve a decision on the part of a woman who is raped, and there was no talk whatsoever among the "conservatives" on the court about the role men play in procreation. Chief Justice John Roberts, who presided over the treasure hunt, was left with trying to find a way to save his court from the "stench" of politics that overturning Roe would bring with it, as Justice Sotomayor so bracingly said.
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Ideology isn't very good at providing answers for bothersome issues like abortion, and it's of little use in keeping offenders out of jail. For that, you need judges. The events of Jan. 6 have provided us with an example of how prescient the Republicans were in packing the federal bench with their brethren. More than 700 people have been arrested and charged with crimes in connection with the assault on the Capitol. Of that number, only 129 have been convicted, all because they entered guilty pleas, most of those in attempts to get reduced sentences. A lot of leniency has been dished out. The number of those serving time in jail for crimes committed during the assault on the Capitol is not known, but there have been numerous reports of probation, suspended sentences and "slap-on-the-wrist" punishments like a few days or weeks in jail.
The Justice Department under Attorney General Merrick Garland has come under criticism for not having brought cases against those known to be involved in the attempts to overturn the election, including such figures as Jeffrey Clark, John Eastman, Rudy Giuliani and the man who made the phone calls and chaired the White House meetings, Donald Trump. The 2022 midterm election is seen as a kind of political deadline for the investigation and criminal prosecutions of those responsible for the attack on the Capitol, as well as those involved in the greater efforts to overturn the election of 2020.
Waiting in the wings are the judges who are already being accused by Democrats of "slow-walking" the cases brought against the insurrectionists. Any cases brought against the likes of Clark, or others allegedly involved in conspiring to overturn the election, will be assigned to a judiciary packed with more than 220 Trump appointees to the federal bench. As we saw in the Supreme Court hearing on Wednesday, those judges can be depended on to be legal experts — or at least, experts at finding justifications for the outcomes that best suit the Federalist Society and the Republican Party.
And then, of course, there is the 2024 presidential election. Trump may or may not run again, but whoever the Republicans run, they will be looking for him to follow Trump's example and act as a pardon machine. If you are a Republican and you are charged with any crime in connection with electing other Republicans, or even with committing violent crimes against the government of the United States, you won't have anything to worry about.
They already own enough judges, and if they get the White House back, it will be ollie-ollie-in-come-free for every Republican conspirator there is.
