Can an attorney plead the 5th if attorney-client privilege is pierced? In the investigation related to Mar-a-Lago, the Justice Department is seeking to pierce attorney-client privilege relating to several bits of testimony and discovery items they're seeking from Trump's attorney, Evan Corcoran. Such a move isn't necessarily unprecedented, but it is extraordinary. Legal Eagle had a piece on this noting that while this move is extraordinary, it's becoming less extraordinary when it concerns lawyers for Trump. Per Legal Eagle, it seems that Corcoran did not wholly trust the information being given to him by his client and engaged in the notable move of recording his conversations. Thus, Corcoran can probably provide testimony which will indicate that he said things that weren't true, but did not knowingly lie because the basis for the information he conveyed was based on the information his client had provided to him. Presumably, because he lacked mens rea, he could not be culpable. However, this lack of mens rea may not be applicable to other attorneys whom have worked for Trump. Presuming a court permits piercing the attorney-client privilege for those attorneys, could those attorneys continue to impede the investigation by asserting their 5th amendment rights?
Can an attorney plead the 5th if attorney-client privilege is pierced? Yes. But if the prosecutor offers the attorney &quot;use immunity&quot; for the testimony (i.e. a binding promise that the attorney's own testimony won't be used against that attorney), then the 5th Amendment privilege can be overcome as well. In other words, the prosecutor can unilaterally force an attorney to waive his or her fifth amendment rights by granting the attorney immunity from having that testimony used against the attorney, even if the attorney doesn't want to do that. This is established, for example, as noted in the comments by bdb484, by the case of Kastigar v. United States, 406 U.S. 441, (1972) (“The United States can compel testimony from an unwilling witness who invokes the Fifth Amendment privilege against compulsory self-incrimination by conferring immunity”).
Mrs. X is under investigation for an alleged crime (say, embezzling from her employer). Prosecutors have obtained a search warrant and seized her computer. X's attorney files a motion arguing against the validity of the computer search, and a court date is selected for a hearing before a judge. At that hearing, the prosecutor requests that the courtroom be closed to the public Search warrants Search warrants are generally issued ex parte (i.e. without an adversarial hearing) and are routinely kept secret until they have been carried out. Targets of search warrants are often, but hardly always, the subject of criminal investigations. Search warrants can only be issued upon a showing a probable cause to believe that the search will reveal evidence pertinent to a crime that has been committed. If a search warrant is issued wrongfully, the remedies are a motion to suppress illegally obtained evidence, and/or a civil lawsuit for money damages, after the search has been completed. Conceivably, a search warrant target could argue that the affidavit providing a basis for the search should continue to be kept under seal, but, unless this was necessary for a grand jury investigation to continue in secrecy, this request would usually be denied. Subpoenas A subpoena does not require a showing of probable cause to issue and can be contested before documents are turned over pursuant to it by the person to whom it is directed (and sometimes other people as well), but a subpoena is rarely issued to an actual target of a criminal investigation. A prosecutor can usually maintain secrecy by conducting an investigation through a grand jury which has subpoena power. Protecting the privacy of a subpoena target would not be a valid reason for closing the courtroom. But a prosecutor's desire to not tip off other subjects of the grand jury investigation, which a public hearing on quashing a grand jury subpoena might do, would be a basis for a valid request from the prosecutor to close the hearing to the public. Have any of X's rights been violated? No. There is a constitutional right of the public and the press to attend court hearings in most circumstances. There is no constitutional right to not have your reputation tarnished by criminal prosecutors in the course of a criminal investigation. Also, generally speaking, prosecutors have absolute immunity from liability for any conduct they commit in the course of a courtroom process. Did she have any right to not have her name tarnished before enough evidence was gathered to even charge her with a crime? No. Similar arguments were soundly rejected by an appellate court panel, for example, in the classified documents criminal investigation of former President Trump.
Defendants cannot switcheroo whenever they want. There are good reasons why this is almost never done. The lawyer in any of these scenarios is violating an ethical duty of candor to the tribunal, if it is done without court permission (which is unlikely to be granted), even if the client suggested or insisted upon the idea. The lawyer would be responsible for his or her client's actions by cooperating in it, rather than calling out his client in open court over the objections of the client to prevent the switcheroo from working, as the lawyer would have an ethical obligation to do. I would not really consider this to be a gray area. The relevant ethical rules and the related official commentaries to them are quite clear, even if they are not absolutely perfectly clear. Those rules create an affirmative duty of an attorney to prevent his or her client from misleading members of a tribunal (either a judge or a jury or both). Cooperating with this scheme could (and likely would) result in professional licensure related sanctions ranging from a private censure to disbarment for the lawyer, just as it did in the linked 1994 case. Also, while a "not guilty" verdict was entered in the 1994 case, the prosecution would have a good chance of success if they demanded that the judge declare a mistrial, and also a good chance of avoiding double jeopardy limitations in this situation, because the mistrial arose from the actions of the defendant trying to bring about the situation. On the other hand, if this trick worked so well that the prosecutors came to the conclusion that their primary witness linking the defendant to the crime was wrong and that the defendant was not actually the person who committed the crime, the prosecutors would have an ethical duty to not attempt to prosecute the individual whom the prosecutors now believed to be factually innocent (the analysis is actually a bit more complex than that, but that is the gist of it). The defendant and the attorney could (and likely would) also each be held in direct, punitive contempt of court by the judge for this conduct, allowing them to be summarily punished by imprisonment or a fine to an extent similar to a misdemeanor violation, on the spot, without a trial other than an opportunity to explain themselves to the judge in a sentence or two each, since it would be conduct in violation of the good order of the court and disrespectful of its rules and decorum conducted in the actual courtroom in the presence of the judge. Each could easily end up spending several months in jail on the spot for that stunt and perhaps a $1,000 fine each, if the judge was sufficiently displeased. There would be a right to appeal this contempt of court sanction, but the contempt of court punishment would almost surely be upheld on appeal in these circumstances. In a case where the criminal defendant faces extremely severe sanctions if found guilty, such as the death penalty or life in prison, and the defense attorney was a self-sacrificing idealist or close family member of the criminal defendant, one could imagine the defense attorney and client deciding that the professional and contempt citation sanctions were worth being punished with, in order to save the life of the criminal defendant, if they also were convinced that this trick would work so well that the prosecutors would be persuaded of the criminal defendant's innocence sufficiently to not insist on retrying the criminal defendant in a new trial. This would be somewhat analogous to an intentional foul in basketball, but with much higher stakes. But, this would be an extraordinarily rare situation in court, because the punishment for this "intentional foul" in the courtroom are much more severe, and because the likelihood of it producing a beneficial result is much smaller. It isn't hard to understand why a successful switcheroo feels morally justified. It prevents a witness whose testimony would have been much less reliable than it actually would have been from being used to convict a criminal defendant who might conceivably be factually innocent. And it might be very hard to discredit the testimony of that witness in any other way in order to prevent a wrongful conviction of the criminal defendant. Eye witness misidentifications are one of the leading causes of wrongful convictions, and are especially common in death penalty cases because jurors are "death qualified" making them more pro-prosecution than a typical jury. Preventing innocent people from being convicted of crimes is one of several important values of the criminal justice system, and this is the instinct that probably motivated the dissents in the professional misconduct process in the 1994 case. But, the court system also strongly values candor on the part of attorneys, and likewise values not having the court systems be used to trip up witnesses who may sincerely think that they are telling the truth even if they are mistaken about the accuracy of their testimony, in a deceptive manner. In this situation, the latter candor consideration usually prevails, because the rules prohibiting this kind of conduct and scheme, which admits no "moral justification" or "necessity exception", are quite clear. In the same vein, a prosecuting attorney can be sanctioned (and has been on at least one occasion in Colorado) for not being truthful in communications to third parties, even when the lies are used to peacefully defuse a potentially deadly hostage situation. For attorneys, the duty of candor and truthfulness really knows no exceptions. Cops, in contrast, however, are allowed to lie in many circumstances to secure confessions or stop criminals.
Short Answer Bob is a non-US citizen and is visiting the USA on a tourist visa. . . . Can Bob invoke the 5th amendment to avoid self-incrimination? Yes. The 5th Amendment is a right applicable to all criminal defendants or potential criminal defendants, not only to U.S. citizens. In Sanchez-Llamas, the U.S. Supreme Court confirmed U.S. Supreme Court precedents in place since 1896 holding (among other things) that: A foreign national detained on suspicion of crime, like anyone else in our country, enjoys under our system the protections of the Due Process Clause. Among other things, he is entitled to an attorney, and is protected against compelled self-incrimination. See Wong Wing v. United States, 163 U. S. 228, 238 (1896) (&quot;[A]ll persons within the territory of the United States are entitled to the protection guaranteed by&quot; the Fifth and Sixth Amendments). Sanchez-Llamas v. Oregon, 548 U.S. 331, 350 (2006). Some Narrow Exceptions To The General Rule Diplomats Immune From Criminal Prosecution This said, the 5th Amendment right not to be forced to incriminate oneself logically might not apply to certain foreign diplomats who are immune to criminal prosecutions in the U.S., since they cannot &quot;self-incriminate&quot; in the sense of making themselves subject to a U.S. criminal prosecution based upon the information that they disclose. But, I'm not aware of any case law addressing that point, only case law addressing other cases where the 5th Amendment right not to self-incriminate did not apply when the person seeking to invoked it was immune from prosecution for the crimes that the defendant might incriminate himself or herself of, for other reasons. Foreign Corporations Also, while the 5th Amendment states that it applies to &quot;all persons&quot;, this is not a part of the constitution in which the definition of a &quot;person&quot; have been extended to apply to corporations and other entities. Compare Citizens United v. FEC, 558 U.S. 310 (2010) (holding that the free speech clause of the First Amendment prohibits the government from restricting independent expenditures for political campaigns by corporations, including nonprofit corporations, labor unions, and other associations). Neither domestic corporations nor foreign corporations have a right to not to self-incriminate under the 5th Amendment to the U.S. Constitution. A corporation is not protected by the constitutional privilege against self-incrimination. Curcio v. United States, 354 U.S. 118, 122 (1957). Why Is This Right Extended To Non-Citizens? The reasoning behind why the 5th Amendment protects foreigners as well as U.S. citizens is different in the case of federal officials and court cases than it is in state and local matters. Why Does This Apply To Non-Citizens In Federal Courts? This is directly true in federal criminal cases as a result of the 5th Amendment to the U.S. Constitution (and originally this applied only to federal court cases), which by its terms applies to all &quot;persons&quot;. The 5th Amendment to the U.S. Constitution states (with the pertinent language in bold): 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 offense 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. Why Does This Apply To Non-Citizens In State And Local Courts? In state and local courts in the U.s., this is true as a result of the 5th Amendment to the Bill of Rights being &quot;incorporated&quot; to apply to state and local governments via the 14th Amendment due process clause of Section 1 of the 14th Amendment which applies to &quot;any person&quot;, rather than the original U.S. Constitution's or the 14th Amendment's privileges and immunities clause which apply only to U.S. citizens. Section 1 of the 14th Amendment to the U.S. Constitution states (with the pertinent language in bold and in bold and italics, and the 14th Amendment privileges and immunities clause in italics only): All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Article IV, Section 2 of the U.S. Constitution states (with the privileges and immunities clause in italics and the repealed third clause of Article Iv, Section 2, related to returning fugitive slaves, omitted): The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. The decision to use the 14th Amendment due process clause rather than the 14th Amendment privileges and immunities clause, was made, in part, because the Slaughter House cases, decided by the U.S. Supreme Court in 1874 before the incorporation doctrine had been developed, narrowly interpreted the privileges and immunities clause as something that applied to only a handful of &quot;rights of federal citizenship.' Could The U.S. Supreme Court Change This Rule? The current Justices on the U.S. Supreme Court can change the interpretation of the U.S. Constitution prospectively, as they did recently and famously, for example, by overruling Roe v. Wade, 410 U.S. 113 (1973), in its decision in Dobbs v. Jackson Women's Health Organization (June 24, 2022) decision. So, it is also worth noting that U.S. Supreme Court Justice Clarence Thomas, in a dissent in the case Saenz v. Roe (1999), has argued that the U.S. Supreme Court made a mistake to incorporate the Bill of Rights to the states via the due process clause of the 14th Amendment, rather than the 14th Amendment privileges and immunities clause, as a result of the much maligned Slaughter House cases. The Slaughter House cases were decided in a manner that minimized the effect of the privileges and immunities clause of the 14th Amendment in a manner that reflected their conservative resistance to the post-Civil War reforms of the Reconstruction era and the Civil War Amendments to the U.S. Constitution (i.e. the 13th to the 15th Amendments). But the Slaughter House cases nonetheless are still good law. This is because this precedent was too settled to be easily undone, and because other means had been developed to serve the purposes it was intended to serve when adopted, by the time that sentiment on the U.S. Supreme Court had changed to accept the demise of slavery, when the U.S. Supreme Court ended the &quot;separate but equal&quot; doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896), in Brown v. Board of Education, 347 U.S. 483 (1954). Justice Thomas argued in his dissent in Saenz v. Roe that the Bill of Rights should instead have been incorporated via the privileges and immunities clause of the 14th Amendment, and that the Slaughter House cases and the various cases establishing the incorporation doctrine as arising under the due process clause of the 14th Amendment should be overruled. If this had been done, it would have denied non-U.S. citizens in the United States the protections of the U.S. Bill of Rights in state and local courts, since the privileges and immunities clause of the 14th Amendment applies only to U.S. citizens. However, despite the minority views of Justice Thomas, this is unlikely to happen, because not enough other U.S. Supreme Court justices have shown any inclination to take this step, even now that Justice Thomas is part of a 6-3 very conservative majority on the U.S. Supreme Court that has been inclined to reverse other longstanding U.S. Supreme Court precedents. Other Rights Of Non-Citizens Interrogated For Crimes Foreigners also have a right under U.S. treaties to consular assistance, under Section 36 of the Vienna Convention. But, unlike the 5th Amendment right, this right arising under U.S. treaties has only rarely been afforded an exclusionary rule type protection to foreign criminal defendants if it is denied, in the way that 5th and 6th Amendment violations of the rights are foreign criminal defendants are protected. In denying defendants exclusionary rule protections for violations of Section 36 of the Vienna Convention, the U.S. Supreme Court concluded in Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006), which addressed all of these issues, that since most Vienna Convention members to not provide an exclusionary rule remedy (something unique to U.S. law) to violations of this treaty right, that U.S. states were also not compelled to do so.
Donald Trump did not waive executive privilege: it was denied to him. In Trump Loses Big on Executive Privilege (Thursday, January 20, 2022) the Lawfare Institute says The Supreme Court Wednesday evening denied a motion by former President Trump to block the National Archive from turning White House materials to the House Select Committee on the January 6 Attack. The peculiar, four-page order, is a complicated document, but in combination with the broad and underdiscussed D.C. Circuit opinion it leaves in place, it has profound implications for Trump’s ability, and that of his allies, to make executive privilege claims in response to demands for testimony and information from the committee. On its face, the Supreme Court’s order yesterday appears to mitigate the consequences for Trump of a D.C. Circuit opinion that rejects a number of his key claims in resisting the committee. The D.C. Circuit opinion has been hanging around since early last month with little notice or discussion—probably because the Supreme Court was poised to jump in any time. But in fact, the Supreme Court action does not mitigate the matter for Trump. Put simply, the former president, whether he knows it or not, is now in a dramatically weaker position than he was only recently with respect to the committee. The new legal landscape, for example, almost certainly means that two top Trump officials—former White House Chief of Staff Mark Meadow and former top adviser Steve Bannon—can no longer argue that the privilege prevents them from cooperating with the committee. The same applies to other potential witnesses, and to the former president himself, should the committee seek his testimony. All, of course, may well continue to resist anyway—but if so, they proceed at much greater risk to themselves.
It is somewhat understated, because your silence can also be used against you. In Salinas v. Texas, defendant Salinas was &quot;just talking&quot; to police, not in custody, and his silence (as opposed to shock and outrage) at the question of whether shell casings found at the crime scene would match his shotgun. This &quot;adoptive admission&quot; was introduced as evidence against him. In order to prevent your silence from being used against you, you must invoke the 5th amendment. There are two exceptions to the rule that you must invoke the 5th to be protected by it. First, a criminal defendant need not take the stand and assert the privilege at their own trial. Second, a witness’s failure to invoke the privilege must be excused where governmental coercion makes their forfeiture of the privilege involuntary (Miranda). In lieu of coercion, you must preface your silence with an invocation of your 5th amendment rights.
Lawyers may break confidentiality with client permission. You can also break your own confidentiality and talk to the prosecutor yourself. The prosecutor's response is up to the prosecutor; however, they tend to not be super excited about giving immunity to a witness for the defense if they might want to prosecute the witness later (and courts often are fine with that), so the more they suspect about your true role the less likely they are to grant it. No. If the feds later find truly independent evidence (they have the burden of showing it's truly independent), they can prosecute. Some states give transactional immunity to witnesses (you can't be prosecuted for crimes you testified about for any reason), but the Fifth Amendment doesn't require it and at least the feds aren't bound by state transactional immunity. It's hard to prosecute, but is possible if prosecutors play their cards right. Yes, it does allow civil liability. There is no right against self-incrimination in civil matters, only criminal liability. If the forced testimony leads to a lawsuit that bankrupts you, too bad.
In U.S. practice, double jeopardy protections attach once the jury is seated and this scenario contemplates the change in position arising at trial. A mistrial could be called, or a continuance obtained, if the defendant suddenly claimed an alibi defense, since that amounts of a defendant waiver of double jeopardy protections. But without proof that the witness was tampered with, obtained at the last moment, it can be difficult or impossible to get proof of tampering or to contradict the story with other evidence to undermine the credibility of the witness. The prosecution would probably request a recess in the trial to regroup and try to admit evidence that the testimony changing witness made a prior inconsistent statement to impeach the testimony of that witness, from whomever that witness told the first time (probably a law enforcement officer). But this is still far less convincing to a jury than an affirmative statement from a witnesses about a key fact. If the prosecution could find evidence of defense side tampering and present it to the judge in the hours or small number of days before the trial ends, it might be able to get a mistrial declared. But it is much harder to get a mistrial for witness tampering when the witness shows up and testifies contrary to prosecution expectations than it is when the witness is, for example, killed or kidnapped and doesn't appear to testify at trial at all. But if evidence of neither type could be obtained before the jury was sent to deliberate and evidence was closed, and the jury then acquitted the defendant, it would be very hard for the prosecution to change this result. Perhaps not completely impossible, but very nearly so. The witness could be (and in this circumstance, despite the extreme rarity of perjury prosecutions, probably would be) prosecuted for perjury, but that wouldn't change the acquittal. If a link to the defendant could be found, the defendant could also be prosecuted for witness tampering or obstruction of justice or something similar. But that is hard to prove (and the witness would probably have to be convicted or provided with use immunity for his testimony) to do so. In English criminal law practice, in contrast, the likelihood of having the verdict of acquittal set aside and getting a new trial would be much greater (and the likelihood of getting a recess mid-trial would be greater in far more common bench trials in lower level criminal cases), but it would still be a serious burden for the prosecution that it might not be able to overcome. Lawyers aren't entitled to expect that witnesses will testify exactly the way that they discussed things with the lawyers before trial, and this can be explained away with a variety of excuses that are usually true (&quot;after thinking it over after meeting with you, I realized that I was confused and getting it wrong&quot;), but are sometimes a cover for a change of story that is not sincere. I've had similar things happen a few times in civil litigation and there is only so much you can do about it.