Daniel Goldman earns the Ethics Alarms clip with Sir Thomas More’s scalding indictment of the character of “A Man For All Seasons” villain Richard Rich, “Why Richard, it profit a man nothing to give his soul for the whole world. . . but for Wales?”
Donald Trump, fighting a coordinated (I believe) Democratic assault from all sides in a desperate effort to neutralize him (an effort than has continued unsuccessfully for a ludicrous six years!) invoked his Fifth Amendment rights against self-incrimination at a deposition for New York Attorney General Letitia James (D). While the ongoing January 6 kangaroo court in the House seeks to prove that Trump planned an “insurrection,” and the Justice Department raided his home ostensibly to find sufficient evidence to prosecute him for mishandling of classified documents, James is continuing her state’s long-running attempts to prove Trump engaged in illegal financial activity and/or corrupt business practices
After Trump’s non-response was reported, Goldman, who was an assistant U.S. attorney in the Southern District of New York for 10 years, tweeted,
“The Fifth Amendment ensures that people are not forced to incriminate themselves. But you don’t take the Fifth if you didn’t do anything wrong.”
Not only is that wrong, Goldman knows it is wrong, meaning that it is a lie. Institute for Justice senior attorney Paul Sherman reacted to this disgraceful partisan hackery by saying,
“Mr Goldman is a Stanford-trained former federal prosecutor and he knows with 100% certainty that this is not true. He’s comfortable lying about it because he’s running for office, and we’ve convinced ourselves that lying is okay if it secures power for your team.”
Bingo. Goldman is currently running for Congress as a Democrat; he also served as lead counsel in both impeachment cases against Trump, which further explicates the legitimacy of those fiascos.
A lawyer cannot reference the fact that a witness or defendant invoked the 5th Amendment in a criminal trial to impute guilt; to do so is misconduct and will probably trigger a mistrial as well as sanctions for the attorney. Lawyers know that the public and juries assume that Goldman’s insidious analysis is fair, which is why attorneys often try to force witnesses to “take the Fifth” over and over again to create prejudice against them. Nonetheless, there are many reasons why an individual may be wise to access the right against self-incrimination, which also includes a criminal defendant’s right not to testfy, a decision that also cannot be used by the prosecution to suggest guilt. Trump, in his inimitable way, accurately described why invoking his right made sense in this case:
I once asked, “If you’re innocent, why are you taking the Fifth Amendment?” Now I know the answer to that question. When your family, your company, and all the people in your orbit have become the targets of an unfounded politically motivated Witch Hunt supported by lawyers, prosecutors and the Fake News Media, you have no choice.
Exactamundo, as Fonzi might say. To be fair, there is some condign justice in Trump being impugned with the False Fifth accusation: he was skewered by the Washington Post. After Hillary Clinton’s computer staffers took the Fifth repeatedly under questioning about her secret server scandal in 2016, Candidate Trump said at an Iowa campaign rally, “The mob takes the Fifth. If you’re innocent, why are you taking the Fifth Amendment?”
Yes, Trump isn’t a lawyer (or even close) and has never been a paragon of consistency. That doesn’t excuse Goldman…he has no excuse.
I believe a lawyer making a public statement like his, that is deliberately “contrary to Constitution. Contrary to Supreme Court 5th Amend. jurisprudence,” as former Assistant Attorney General Jeff Clark wrote, deserves professional sanctions. However, because he is a political candidate, it’s a close call.
Clark also called Goldman’s remarks a “disgraceful position.” “An indication that any oaths you took while in the fed’l gov’t were a farce,” Clark tweeted. “No way you’d be saying this if it were the Clintons or Bidens.”
Or for Wales, presumably.