IS THE MUELLER PROBE ILLEGITIMATE? WAS THE TRUMP CAMPAIGN ENTITLED TO BE GIVEN “MIRANDA” TYPE WARNINGS PURSUANT TO THE FIFTH AMENDMENT RIGHTS AGAINST SELF-INCRIMINATION?
“poisonous bait = irreparable taint…” Marion TD Lewis
The Fifth Amendment of the Constitution protects criminal defendants from self-incrimination in a criminal probe. As a result, criminal defendants can suppress evidence from a police interrogation if the police fail to read them their “Miranda Rights” which includes informing the suspect that he or she has the right to an attorney and even more importantly, that they have the right to remain silent and not incriminate themselves.
Can an argument be made, how ever specious, that the Trump campaign, as an entity, (and all the individuals working on it at Trump Tower) was entitled to Miranda type rights at the outset of the FBI investigation? Indeed, could one argue that the commencement of an FBI probe into the Campaign’s relationship with Russia, rendered the campaign and the individuals working on it, for all effects and purposes “criminal defendants”?
It is widely known that the FBI probe ultimately led to the appointment of a Special Counsel which continued to “interrogate” and “investigate” and “monitor” the campaign for several months beyond the FBI probe, for criminal wrongdoing. Did they owe the defendants or potential defendants Fifth Amendment deference?
Further, having failed to provide the campaign with these warnings are law enforcement officials – including the FBI, DOJ and Office of the Special Counsel – barred from introducing any evidence gathered as “fruits of the poisonous tree”?
Under normal criminal procedure rules, six requirements must be met in order for Miranda to apply to a criminal defendant. Could these very rules be applied to the Trump campaign? Let us examine each rule in turn.
First, for Miranda to apply to a criminal defendant, he or she must have made a statement from which evidence is gathered. Did the Trump campaign, as an entity make any such statements from which evidence was gathered? Arguably, yes.
The campaign both individually and collectively made statements everyday in Trump Tower completely unaware that evidence was being gathered against them that would potentially be used in a criminal probe later on. They could not “remain silent” and not “incriminate” themselves because they did not know they were being investigated or monitored.
This is in contrast to former secretary of State Hillary Clinton who knew she was being monitored with regard to the investigation into her emails.
Arguably, not knowing they were under FBI watch left all members of the campaign vulnerable to self-incrimination in violation of their Fifth Amendment Rights.
Second, for Miranda to apply, the evidence gathered must be “testimonial” in nature and must disclose information, facts and beliefs. It can be argued that all communication between campaign staff in Trump Tower was indeed testimonial in nature. The only problem is that the defendants did not know that their testimony was being observed or would be observed at a later date by the Special Counsel.
Third, for Miranda to apply the evidence must be obtained when the suspect is in custody. Was the campaign “in custody” at the time of the FBI monitoring or during the period of the Special Counsel’s investigation? It depends on what it means “to be in custody.” A person is in custody if they are under arrest. That is the usual understanding of this word. However, the word custody has many different synonyms that include “scrutiny” “observation” “watch” “inspection” and “monitoring.”
Could the Trump campaign and its staff make the argument that the FBI probe was a type of “observation” or “scrutiny” that rose to the level of it being placed under “custody”? It is a debate. One could certainly argue that had the campaign known about the FBI interest in their relationship to Russia, they could reasonably have believed that they were under a type of “surveillance” and that they therefore had the right to be told that they were incriminating themselves on a daily basis with the interviews and meetings they were holding, as well as their social media and digital interactions.
Fourth, the evidence gathered must be the product of an interrogation. Was the Trump campaign under interrogation either during the FBI probe into the campaign or during the Special Counsel’s investigation? Of the latter prong, clearly the answer is yes. The Special Counsel spent many months “interrogating” people from the campaign. With few exceptions, no one on the campaign “volunteered” any information. They were subpoenaed or compelled to speak. But indeed, the interrogation can be argued to have started even before the appointment of the special counsel. During the FBI probe, an informant was sent in to “interrogate” campaign staff in a manner that was not transparent and may have even been surreptitious. Thus any evidence gathered during this time should be subject to Miranda types of warnings or rules.
Fifth, the interrogation must have been conducted by state agents. In this case, clearly, the interrogators including the FBI, the informant and even the special counsel were all state agents. Thus, the Trump campaign arguably had a right to know that their Fifth Amendment rights could be implicated and they should have received a warning from the outset of the FBI probe that they were potentially being or going to be monitored or “watched” and/ interrogated by state agents
Finally, the evidence in question must be brought up in a criminal proceeding. Normally, if a defendant in a criminal proceeding did not receive Miranda rights, he or she can suppress any evidence as “fruits of the poisonous tree.”
The Trump campaign can argue that because they were not given any Miranda warnings at the beginning of the FBI probe which later led to the appointment of the Special Counsel, that all evidence obtained from this probe and ultimately by the special counsel should be suppressed.
So …Maybe Rudy is right. Maybe this “fruits of poisonous tree” defense does make sense after all. But actually, it was my idea from the start so I think he reads my blog, or my mind.
The six rules for Miranda came from an article on Wikipedia.