How Democrats In Arizona Are Damaging The Fifth Amendment

jerryhopman. Getty IMages.
jerryhopman. Getty IMages. State Capitol Building in Phoenix, Arizona.

When a political fever runs hot among government officials, the Bill of Rights is often one of the first casualties. Few fevers have been as hot as the Democrats’ reaction to January 6.

It is no surprise, then, that the investigation by Democrat Arizona Attorney General Kris Mayes, like that of the Congressional Select Committee in 2022, obliterated a sacred norm. In this case, the chalk outline is around the Fifth Amendment.

I offer this observation as one who recently was compelled to appear in front of an Arizona state grand jury. The sole purpose is for me to repeat my prior invocation of my 5th Amendment right to remain silent in connection with an investigation into my service as an alternate elector for President Trump in 2020. This follows the shameful spectacle of Congress’ House January 6 Select Committee using footage from its investigatory video depositions to produce a slick TV show in advance of the 2022 elections to publicly shame Republican witnesses who invoked their 5th Amendment rights.

The Bill of Rights were inserted into the Constitution to protect our essential rights, and the Fourteenth Amendment applies them to the states. The Fifth Amendment contains powerful defenses against abuses of power. It includes the right to be indicted by a grand jury for serious crimes instead of at the whim of a prosecutor, prohibits the government from prosecuting someone twice for the same offense, guarantees due process when the government tries to take your life, freedom, or property, and requires the government to pay for any property it takes from you. The Fifth Amendment has one more essential protection: the government cannot force you to testify against yourself.

Importantly, the Supreme Court held in Grunewald v. United States that one of this privilege’s basic functions is to protect innocent men who otherwise might be ensnared by “ambiguous circumstances.” The circumstances involving electors in the immediate aftermath of the 2020 election were indeed “ambiguous.” Alternate electors had been used in Hawaii in 1960, and the votes of John F. Kennedy’s alternates were ultimately validated long after the election. The day after the 2020 election, liberal commentators Van Jones and Larry Lessig published their opinion on CNN that Biden too should select alternate electors in Pennsylvania because Trump was leading in that state’s ballot count and the Democrats should contest the election.

Speaking of ambiguity, exactly what crime Attorney General Mayes is investigating was unclear from the face of the subpoena I received: It provided no notice of the authority of the Attorney General to convene this particular grand jury, no notice of the topic being investigated or the laws allegedly broken, and yet it said that I was a target of the investigation and must testify.

Concern that Mayes is overstepping her authority for political gain is not mere speculation. Before her election in 2022, she campaigned on her certainty — before her investigation — that Arizona’s alternate electors committed a crime. Recently, Mayes declared that Democrat attorneys general such as herself “absolutely have to get President Biden re-elected.” With Arizona’s elections only a few months away, consider that Arizona’s investigation is somehow still ongoing nearly three and a half years after the events at issue, that other states and the federal government investigated and made their prosecutorial decisions long ago, and Mayes transparently told the press last year that, with regard to the investigation, “We’re going to make sure that we do it on our timetable.”

For these reasons, though I maintain my innocence of any crime, I invoked my 5th Amendment right not to be compelled to testify against myself. Longstanding tradition and practice in both state and federal proceedings provides that once an individual subpoenaed by a grand jury informs the prosecution that the individual intends to assert the Fifth Amendment privilege not to testify, the individual is not compelled to appear before a grand jury for the purpose of invoking the privilege. And yet, I and other Republican witnesses were paraded in front of the grand jury solely to invoke our rights. This has rightly provoked the ridicule of both prosecutors and defense counsel.

There is no substantive evidence in the act of invoking one’s Fifth Amendment rights. To force a witness to do so in front of the grand jury is an improper attempt to bias the grand jury and embarrass the witness. In some jurisdictions like the District of Columbia, a lawyer can be disciplined for forcing a witness to appear only to invoke their Fifth Amendment right.

The damage Democrats like Kris Mayes are inflicting on the 5th Amendment, and especially their normalization of its violation for political gain, is shameful and an affront to our Constitution. Repairing this damage must be a priority for Republicans this election year.

* * *

Jake Hoffman is an Arizona state senator in Arizona’s 15th district. 

NOTE: DC Bar Ethics Opinion 31 is found on page 91 of the linked reference.

The views expressed in this piece are those of the author and do not necessarily represent those of The Daily Wire. 

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