A former federal prosecutor triggered bipartisan backlash on Wednesday for suggesting that invoking Fifth Amendment rights implies guilt.
On Wednesday, former President Donald Trump invoked his constitutional rights against self-incrimination, declining to answer questions at a deposition for New York Attorney General Letitia James (D).
Trump announced he invoked his Fifth Amendment rights after arriving to the deposition. The statement explained:
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.
For more than three years, James has been probing Trump's business practices as part of a civil investigation.
Daniel Goldman, who served as an assistant U.S. attorney in the southern district of New York for 10 years, suggested Trump is relaying guilt because he invoked his constitutionally protected rights.
"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," Goldman said on Twitter.
\u201cThe Fifth Amendment ensures that people are not forced to incriminate themselves. \n\nBut you don\u2019t take the Fifth if you didn\u2019t do anything wrong.\u201d— Daniel Goldman (@Daniel Goldman) 1660144767
Goldman is no stranger to Trump.
The former federal prosecutor, who is now running for Congress as a Democrat, served as lead counsel in both impeachment cases against Trump.
New York attorney Eliza Orlins said Goldman's remarks demonstrate "why we don’t trust prosecutors."
"They lie through their teeth, and they don't operate in the best interests of the people (you and me!) they're alleging to represent," Orlins said. "There is *nothing* incriminating about taking the Fifth. It’s a right that every American—yes, including terrible former presidents—has. And should use!"
Former Assistant Attorney General Jeff Clark, who served in the Trump administration, called Goldman's remarks a "disgraceful position."
"Contrary to Constitution. Contrary to Supreme Court 5th Amend. jurisprudence. An indication that any oaths you took while in the fed'l gov't were a farce," Clark said. "No way you'd be saying this if it were the Clintons or Bidens."
Law reporter Chris Geidner, himself a lawyer, said Goldman's remarks prove why America needs fewer prosecutors in power.
"For the record, s*** like this is why I talk so much about needing more former public defenders — and fewer former prosecutors — on the bench," Geidner tweeted.
Meanwhile, Institute for Justices senior attorney Paul Sherman accused Goldman of lying to score political points.
"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," Sherman said.
A federal judge ordered a man accused of participating in the Jan. 6 riot at the U.S. Capitol to unlock his laptop "with his face" after prosecutors said the laptop likely contains video footage from his helmet-worn camera that would incriminate him.
Defendant Guy Reffitt was arrested in January and charged with five federal crimes, including bringing a handgun to the Capitol grounds during the riot and obstructing justice by allegedly threatening his family, saying he would kill them if they turned him in. He has plead not guilty to all charges.
FBI investigators seized his Microsoft Surface Pro laptop and other technological devices after obtaining a search warrant earlier this year, CNN reported. The laptop was password-protected, but the investigators said it could be unlocked with facial recognition technology. Prosecutors believed the laptop contained more than six gigabytes of footage from Reffitt's helmet-worn camera, which would show that he had participated in the riot and trespassed on the U.S. Capitol grounds.
Attorneys for the defense had argued in court filings that Reffitt couldn't remember his password and that the search warrant for the laptop had expired.
Prosecutors had asked the judge to compel Reffitt to sit in front of the computer's camera and unlock it with his face. Judge Dabney Friedrich sided with their arguments, agreeing that forcing the defendant to unlock the laptop did not violate his Fifth Amendment right to be protected from self-incrimination.
The Fifth Amendment grants anyone in the U.S. the right to remain silent if they are charged with committing a crime, a protection for an innocent person "who otherwise might be ensnared by ambiguous circumstances." Courts have previously ruled that a defendant cannot be compelled to turn over computer passwords. Passwords are considered "testimonial" evidence, which a defendant can refuse to provide to law enforcement because doing so would mean answering a question based on the contents of their thoughts.
However, the prosecution successfully argued that those protections do not extend to a person's physical features, like their face or fingerprints, which can be used in place of password protection and are considered physical pieces of evidence. According to TechCrunch, the FBI also argued in its indictment that ordering Reffitt to sit in front of his computer and unlock it with his face "would not run afoul of the defendant's Fifth Amendment right against self-incrimination."
Several court rulings support this argument. In 2014, a Virginia judge said police could compel a defendant to provide his fingerprint to unlock a cellphone that may have contained incriminating evidence because a fingerprint, like giving DNA or a handwriting sample, is physical evidence. Similar cases were decided in 2016 and again in 2017.
"The self-incrimination analysis for biometric and face scanning would be the same as for Touch ID," Jeffrey Welty, a UNC-Chapel Hill law professor, said in a 2017 interview with The Verge.
"Standing there while a law enforcement officer holds a phone up to your face or your eye is not a 'testimonial' act, because it doesn't require the suspect to provide any information that is inside his or her mind."
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