Season 2, Episode 36 (Show 88): Trump Takes the Fifth

August 31, 2022

Ex-President Trump invokes the Fifth Amendment hundreds of times in a New York State deposition, as he and his corporation are investigated.  We take this opportunity to look closely at the Fifth, and in so doing to challenge everything you think you know about it.

The Trump investigations are everywhere.  This week we move from Mar-A-Lago to New York, where the Attorney General had some questions for the ex-president.  He took the Fifth, repeatedly if unsurprisingly.  We look at it, but to do so we look at the Fifth Amendment itself, its roots going back millennia, and its evolution as American law.  So you think you know the Fifth?  We beg to differ.  Prepare for an entirely new way to think about this venerable protection, as Professor Amar offers a framework that will provoke, surprise, and hopefully, delight.

Show Notes:

Fifth Amendment, First Principles

Professor Amar’s Michigan Law Review article, Fiffh Amendment First Principles: The Self-Incrimination Clause, co-authored with Renée Lettow, which forms the basis of much of this podcast’s discussion.

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Paper Chase - The New Republic

Reprinted in Professor Amar’s book, The Constitution Today, this 1997 article discusses some of the intertwining of the Fifth Amendment, the First Amendment, the Fourth Amendment, and “papers.”

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The Substantive Origins of Criminal Procedure - 1995

William J. Stuntz writes in the Yale Law Journal in 1995 on “The Substantive Origins of Criminal Procedure,” anticipating a question this podcast raises.

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