To understand this you have to first look at what the fifth amendment actually says. It is commonly said that the fifth amendment provides the right to stay silent. This is not true. What it actually says is “nor shall be compelled in any criminal case to be a witness against himself”.
The trap here is that if you testify, even if the current case is not against you, could that testimony be used against you in the future, violating your fifth amendment rights.
The Immunity Act of 1954 codified that if a person is granted immunity, then they may be compelled to testify or face contempt charges. This was upheld in 1956 by the Supreme Court in Ullmann v United States.
This was further clarified in Kastigar v United States (1972) the Supreme Court decided that the 5th amendment protections can be overcome by granting immunity from “use and derivative use” of their testimony.
Yes, if a witness is granted statutory use/derivative-use immunity, the government can compel testimony despite a 5th Amendment claim. That’s the rule from Kastigar.
But that is not the same thing as saying presidential immunity automatically eliminates the 5th Amendment.
Kastigar deals with a formal immunity grant for compelled testimony. Presidential immunity deals with whether a former president can be criminally prosecuted for certain official acts.
Those are related concepts, but they are not identical.
So the missing step is still who has granted Obama testimonial immunity under this rule, and for what testimony?
If nobody has, then I don’t see how “presidential immunity” alone means he “cannot plead the 5th.” Presidential immunity may limit prosecution for official acts, but it does not automatically immunize every possible answer about unofficial acts, post presidency conduct, perjury, conspiracy, false statements, or other exposure.
So I agree with the general legal principle, immunity can overcome a 5th claim.
But I’m still not seeing proof that the specific immunity being discussed here operates that way.
Fair enough. In that narrow context, I agree with you.
If someone is granted formal testimonial immunity, especially use/derivative use immunity under Kastigar, then the 5th claim can be overcome and testimony can be compelled.
My issue was with the broader claim in the OP, which seems to treat presidential immunity as if it automatically functions the same way as a formal immunity grant compelling testimony.
Those are not the same thing.
So yes, your point is correct as a general immunity/5th Amendment principle. I’m still questioning whether that principle actually applies to Obama here without a specific formal immunity grant covering the testimony at issue.
Says who or what? Why do you think this is true?
What laws or part of the Constitution says this?
To understand this you have to first look at what the fifth amendment actually says. It is commonly said that the fifth amendment provides the right to stay silent. This is not true. What it actually says is “nor shall be compelled in any criminal case to be a witness against himself”.
The trap here is that if you testify, even if the current case is not against you, could that testimony be used against you in the future, violating your fifth amendment rights.
The Immunity Act of 1954 codified that if a person is granted immunity, then they may be compelled to testify or face contempt charges. This was upheld in 1956 by the Supreme Court in Ullmann v United States.
This was further clarified in Kastigar v United States (1972) the Supreme Court decided that the 5th amendment protections can be overcome by granting immunity from “use and derivative use” of their testimony.
Yes, if a witness is granted statutory use/derivative-use immunity, the government can compel testimony despite a 5th Amendment claim. That’s the rule from Kastigar.
But that is not the same thing as saying presidential immunity automatically eliminates the 5th Amendment.
Kastigar deals with a formal immunity grant for compelled testimony. Presidential immunity deals with whether a former president can be criminally prosecuted for certain official acts.
Those are related concepts, but they are not identical.
So the missing step is still who has granted Obama testimonial immunity under this rule, and for what testimony?
If nobody has, then I don’t see how “presidential immunity” alone means he “cannot plead the 5th.” Presidential immunity may limit prosecution for official acts, but it does not automatically immunize every possible answer about unofficial acts, post presidency conduct, perjury, conspiracy, false statements, or other exposure.
So I agree with the general legal principle, immunity can overcome a 5th claim.
But I’m still not seeing proof that the specific immunity being discussed here operates that way.
I said: "If you are granted immunity you can not use the fifth amendment to not testify. That is well established."
You asked me: "Says who or what? Why do you think this is true? What laws or part of the Constitution says this?"
I was answering the question in that context.
Fair enough. In that narrow context, I agree with you.
If someone is granted formal testimonial immunity, especially use/derivative use immunity under Kastigar, then the 5th claim can be overcome and testimony can be compelled.
My issue was with the broader claim in the OP, which seems to treat presidential immunity as if it automatically functions the same way as a formal immunity grant compelling testimony.
Those are not the same thing.
So yes, your point is correct as a general immunity/5th Amendment principle. I’m still questioning whether that principle actually applies to Obama here without a specific formal immunity grant covering the testimony at issue.