Can a Pardon Silence?

Evan Robinson, Contributing Writer

In a normal situation, a person testifying under oath has full capabilities to invoke their Fifth Amendment. However, if Michael Flynn, former National Security Advisor, was granted a pardon by President Donald Trump in exchange for silence in his testimony — one that could incriminate the administration — an unusual situation is created. If a person accepts a pardon from the President of the United States in an ongoing investigation, they will lose their right to invoke the Fifth Amendment because that person can no longer self-incriminate. The judicial branch is in place in order to check the power of the executive and legislative branches, so we should allow them to do so.

Many people would argue against how this area of the law should be interpreted. Although there are court cases that say the First Amendment protects the lack of speech as in West Virginia State Board of Education v. Barnette, take a strong look at Congress’s right to subpoena a witness and that witness’s obligation to report full and factual information about the investigation. In a normal situation a person could invoke the Fifth Amendment, but in this unusual case, anything other than the full story could be considered “willfully withholding” information or obstructing of proceedings, as stated in the Office of the Law Revision Counsel. If you cannot invoke the Fifth Amendment, you have a clear obligation to testify.

The erratic nature of the Trump administration and ongoing Russia investigations forces us to consider the intent of the Fifth Amendment and the ideal to, as it states, “Protect people from being compelled in any criminal case to be a witness against himself.” However, any good intention in law comes with a gray area. For the Fifth Amendment, this occurs when a person can’t be a witness against him or herself because of a pardon. It raises a dilemma in which if no new charges are brought in the investigation, then does that person still have the right to remain silent? No, that person does not have the right to remain silent under oath. The reason for this is quite simple; that person can no longer be a witness against himself. If a person’s words can no longer self-incriminate then by definition, the silence is no longer protected.

What can you as a NYU student do about such a complex issue? The ideals of a presidential pardon are defended by Alexander Hamilton’s argument in his Federalist Papers No.74; in regards to the President of the United States, “there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature.” In layman’s terms, Hamilton suggested that the pardon should belong to the President of the United States since, by virtue of being elected president, they are held to a higher standard of “fitness.” NYU students can fulfill the ideas of Hamilton by voting every election cycle in order to elect a man or woman who meets the level of “fitness” that the Office the President requires.



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Email Evan Robinson at [email protected].