Season 2, Episode 37 (Show 89): Trump Says His Name

September 7, 2022

The Fifth Amendment, reimagined.  Donald Trump, quiet if not silent.  Immunity reshuffled. And lawyers in danger.  Big changes happen when you identify the big idea, then pull on its thread.

Our last episode explored how the self-incrimination protection came about, and how much of safeguards now lie outside the fifth amendment.  Given that, what is left?  Surprise – Professor Amar has a theory, and once again, it can change everything.  Well, almost everything – Donald Trump is still up to his old tricks.  Why does he say his name, and nothing else?  Also, what’s going on back in Florida, and what does it mean for Trump’s hapless attorneys? There will be a lot to explain to your friends after you finish this one.

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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Counselman v. Hitchcock (1892).

Counselman v. Hitchcock, 142 U.S. 547 (1892).  A case that required transactional immunity for a compelled confessions.

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Kastigar v. United States, (1972)

Kastigar v. United States, 406 U.S. 441 (1972), Use plus fruits immunity.

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Taking the Fifth Too Often - NY Times

Op-ed by Professor Amar in the New York Times which discusses the Fifth Amendment problems with Congressional Investigations in the case of Enron in 2002.

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