Judging Freedom - The Judge answers viewer questions - Detailing pleading the fifth

Episode Date: December 16, 2021

The Judge answers viewer questions giving detailed answers and further insight. Comment your questions below, and be sure to like and subscribe! #JudgeNapolitano #MarkMeadows #JudgingFreedomSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

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Save $80 with code SPACE80 at Talkspace.com. hello my friends judge napolitano here with another what's on my mind from my podcast that judging freedom today i'm going to answer questions and these are questions that were generated uh by the what's on my mind yesterday. The questions are great questions and I love doing this, but I want you to know that I'm going to do this every day. Now I am going to talk to you about the major legal issues of the day and answer your questions from the day before. Sometimes if the questions are really terrific, I'll answer them from the same day. So if you subscribe to my podcast, which doesn't cost you anything, and then if you subscribe to alerts of my podcast, which doesn't cost you anything, our friends at Google will alert you when the comments that I make

and the podcasts that I produce are going to be posted. So right now it's about 930 in the morning on Thursday, December 16th. This will be posted hopefully by noon today. And those of you who have subscribed and subscribed to the alerts, Google will tell you when it's on and you know how to find it on Google, on YouTube, on Apple and on Spotify. And of course, they're all posted at Judge Knapp. And if you want to subscribe, go to Judge Knapp. And there's a place somewhere, whether it's Judge Knapp, forgive me for being technologically not as good at this as most of you are, there's a place for you to answer questions.

And my team and I love your questions. So here we go. Yesterday, I was explaining the awful legal situation that Mark Meadows, the former congressman whom I know, and the former chief of staff to former President Donald Trump is in. He's in a legal mess because the January 6th investigating committee of the House of Representatives served him with a subpoena, and he began to comply with the subpoena, both by giving testimony, by having his lawyers explain his positions on things in letters, and by surrendering documents, and then he changed his mind. And I explained how that can be catastrophic to his legal position because once you open the open the door to cooperation you really can't stop so a viewer who calls himself belly size belly size writes why can't meadows plead the

fifth on a question by question basis that is a very good question in fact I once asked that question in a criminal procedure exam when I was teaching criminal procedure at Delaware Law School. As many of you know, I spent 17 years as a law professor. Here's the answer. If the courts permitted the witness to choose which questions to answer, then the witness is effectively controlling the interrogation. So the courts have taken the position that the Fifth Amendment right to silence must be used as a blanket total silence or not at all. So if you're sworn in and they ask you your name, you can give your name. And if they ask you your address, you can give your address. If you answer a single substantive question, you have waived your Fifth Amendment right.

In Mark Meadows' situation, he not only has answered substantive questions already, not in public, but in private, but he has provided so many documents to the committee that he has given up his Fifth Amendment right. So you can't invoke the Fifth question by question. You can only invoke it for everything. That's the bind that he's in. Another follow-up question from John Albano, who asks, Judge, how does this protection apply to military personnel and government officials and agencies in service? Well, the Fifth Amendment right is a personal, natural right. The Fifth Amendment doesn't grant your right to remain silent. You have a natural human right to remain to remain silent. You have a natural human

right to remain silent, just like you have a natural human right to speak your mind. The Fifth Amendment prevents the government from interfering with that right. So if you're in the military where you have taken an oath to obedience and you have given up some of your rights, you have not given up your Fifth Amendment right. So military and veterans, which is also part of John Albano's question, also have the same rights to remain silent. But again, just like in the Meadows case, it has to be an absolute and total right. It's got to be in vogue for everything except your name and address. Answer one substantive question and you've blown it. Finally, some friends of ours at Cobra Engineering

ask, how can the legislature hold someone in criminal contempt? That's a duty of the judiciary. The legislation doesn't enforce laws and doesn't operate as a court. What am I missing? Well, the legislature holds someone in contempt. That's just the opinion of the legislature. That has no legal force whatsoever. The contempt only has sting to it when the executive branch prosecutes before the judicial branch. So even though the House of Representatives has held former member of the House of Representatives and former chief of staff to the White House, Mark Meadows, in contempt, that doesn't mean anything. They have held lots of witnesses

in contempt for not answering the question. The sting, the pain, the punishment only comes about if the person who's been held in contempt is indicted by a grand jury, which is an action of the executive branch, the prosecutors appearing before a grand jury, and the judicial branch, the grand jury, and then is tried and prosecuted before a judge and jury. So the actual punishment for contempt of Congress can only come after a jury trial presided over by a judge with all of the constitutional protections. I hope I have answered all of your questions, my friends. My team and I love these questions. Keep them coming. Count on me to be here for you, to explain the law so that you can understand it and to follow up with your questions the same day or the next day. Judge Napolitano on judging freedom. Have a great day.