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Rabbinical Law, The 5th Amendment, and Michael Cohen's Guilty Plea

The same civil liberties that protect accused communists or street criminals may also protect the president or his lawyer. They protect us all.

The guilty plea of a former lawyer for the Trump Organization, Michael Cohen, was reportedly motivated in part by Cohen's 83-year-old father, who supposedly told his son that he didn't "survive the Holocaust to have his name sullied by Mr. Trump."

It's unclear whether Michael Cohen or his father are aware of it, but Jewish law that long predates the Holocaust forbids the use of guilty pleas. That tradition may provide some useful perspective on Michael Cohen's confession and on the American criminal justice system that extracted it.

Don't just take it from me. No fewer than three U.S. Supreme Court justices have publicly cited the Jewish prohibition on self-incrimination. All three of those justices were noted liberals, which may be something to consider for those on the left who have been cheering Cohen's guilty plea as a defeat for President Trump.

Chief Justice Earl Warren, in his landmark opinion in the 1966 case Miranda v. Arizona, wrote, "We sometimes forget how long it has taken to establish the privilege against self-incrimination, the sources from which it came, and the fervor with which it was defended. Its roots go back into ancient times." Warren's footnote for that sentence went to the Jewish philosopher Maimonides, who lived from 1135 to 1204: "To sum up the matter, the principle that no man is to be declared guilty on his own admission is a divine decree."

Justice William Douglas, in his 1967 opinion in Garrity v. New Jersey, recognized that police officers, too, were protected by the Fifth Amendment right against being forced to testify against themselves in a criminal proceeding. Douglas quoted a journal article by Rabbi Norman Lamm, who would later become president of Yeshiva University, titled, "The Fifth Amendment And Its Equivalent In Jewish Law." Lamm, as quoted by Douglas, wrote that Jewish law "does not permit self-incriminating testimony. It is inadmissible, even if voluntarily offered."

Justice Arthur Goldberg, in his introduction to Aaron Kirschenbaum's 1970 book "Self-Incrimination In Jewish Law," wrote, "We have something to learn from this ancient tradition, particularly now, when our constitutional privilege against self-incrimination, embodied in the Fifth Amendment, is under attack." Goldberg's comment is quoted in a 2006 law review article by Samuel J. Levine, who is a rabbi and a lawyer.

What did Goldberg mean when he said the Fifth Amendment was "under attack"? Perhaps he had in mind elements of the American right. Those elements had been trying for decades to narrow the Fifth Amendment, which they saw as a refuge for violent criminals and for communists and fellow travelers.

Here the parallels, echoes, and contrasts are striking. President Trump's description of the Robert Mueller and Russia collusion investigation as a "witch hunt" is precisely the phrase used to criticize Senator Joseph McCarthy for his own investigations into Russian influence. McCarthy was abetted by a lawyer named Roy Cohn, who later represented and forged a close relationship with Donald Trump. During the McCarthy period, it was a Harvard Law School dean, Erwin Griswold, who emerged as a forceful defender of the Fifth Amendment. Dean Griswold, who preceded Robert Bork as Richard Nixon's solicitor general, gets credit for having brought Alan Dershowitz to Harvard Law School. (My own introduction to this material came in a Harvard College class about Maimonides taught by Isadore Twersky, who assigned the passage quoted in the Miranda opinion as required reading.)

In a 2014 note in the New York University Law Review, "Maimonides, Miranda, And The Conundrum Of Confession: Self-Incrimination In Jewish And American Legal Traditions," Becky Abrams Greenwald cites the 1964 case Escobedo v. Illinois. In that case, an opinion by Justice Goldberg warned, "We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement which comes to depend on the 'confession' will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation."

Ms. Greenwald writes that Goldberg's views "echo the centuries of both American and Jewish concern that systems founded on self-incriminating statements may prove fatally, fundamentally unsound."

None of this is to say that the U.S. government should adopt Judaism's approach to confession-based convictions, which is even more restrictive than the Fifth Amendment. Nor is it to say that the McCarthy and Mueller situations are precisely the same.

It is to suggest, though, that these concerns about self-incrimination in Jewish and American law —risks of injustice, threats to human dignity — are worth careful consideration. The same civil liberties that protect accused communists or street criminals may also protect the president or his lawyer. They protect us all.

Ira Stoll is editor of FutureOfCapitalism.com and author of JFK, Conservative.

Photo Credit: Lucas Jackson/REUTERS/Newscom

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  • Eddy||

    A coerced confession, even if denominated a "plea bargain," is unreliable.

    Also, who is the source for the material about the holocaust-surviving father? Not that I'm suspicious or anything, and I'm sure his father *did* survive the Holocaust, but I'm wondering how much the son is using his father's experiences to tug at the ol' heartstrings.

  • Eddy||

    As Alan Dershowitz noted, most people who survived the Holocaust didn't become criminals - and by extension, I'd say, most relatives of Holocaust survivors didn't become criminals either.

  • Brett Bellmore||

    I'd say that's a fair guess, because most people don't become criminals, except in a "three felonies a day" sense.

  • Unicorn Abattoir||

    Read the daily mail article. Apparently he uses this line a lot:

    He tweeted June 20: 'As the son of a Polish holocaust survivor, the images and sounds of this family separation policy [are] heart wrenching.'

    'As the son of a holocaust survivor, I have no tolerance for #racism. Just because I support @POTUS @RealDonaldTrump doesn't make me a racist,'

    (the second quote is followed by photos of Cohen with black people. Just the thing a racist would do)

  • Number 2||

    The elder Mr. Cohen is worried that Trump is going to ruin the family name? Seems to me that Sonny Boy did the job well enough on his own.

  • Agammamon||

    I'm doubting.

    Cohen was born in 1966. To have survived the Holocaust his father would have had to sire him at *at least* 21 - if the father was born in 1945 (ie, the year WW2 ended). Otherwise his 'survival' would have been either as a toddler or he had Cohen pretty late in life for that generation. There's a yuge difference between 'was born Jewish in Europe in WW2' and 'survived the Holocaust'.

  • fdog50||

    The article says Cohen's father is 83, meaning he was born in 1935 (or possibly 1934). If he was born in Poland,then he certainly would be considered a Holocaust "survivor". I don't know what happened, but it may have been that his family fled Poland for some other part of the world, or he and his family members may have been hidden by some one, or lived in hiding on their own. Furthermore, in 1966, he would have been only 31 or 32, which is hardly "late in life for that generation" to father a child.. What are you doubting?

  • Brett Bellmore||

    That's for sure: My parents had their first kid, (Me!) in their 30's. WWII caused a lot of that, by putting people's plans on hold for a while.

  • Ron||

    So If you can't self incriminate, which is good, then without self incrimination you wouldn't flip on others. sounds like Trump was partially right again.

  • Unicorn Abattoir||

    Not necessarily.

    If the prosecutor has enough evidence to convict you, he could drop the charges in exchange for flipping.

  • Ron||

    hence the partially right however if you beat a person enough they will self incriminated and flip and that is why self incrimination is illegal, to save people from being forced to self incriminate

  • Fuck you, Shikha (Nunya)||

    How is that still not coerced?

  • Brett Bellmore||

    The concern is not about people pleading guilty because they know they're guilty, and that the prosecutor can prove it. The concern is about people pleading guilty because "the process is the punishment", and because they can't take the risk of a false conviction putting them away for life.

    I think it's a good idea to require the state to prove guilt in an adversarial process. I'd go further and allow juries to sanction the prosecution for over-charging.

  • Lester224||

    Good luck getting right-wing support to sanction the prosecution for over-charging.

  • DajjaI||

    I know some children of Holocaust survivors, and they are very accomplished people in different fields. However, just because your parents survived the Holocaust doesn't make you an expert in preventing genocide. For example, one of the aforementioned lives in Israel but supports gun control in the US - even though it will cause a civil war and possibly apartheid state like Israel where people are picked off like fish in a barrel if they demonstrate for their rights. And of course, Cohen enabled Trump's rise, and Trump (as we all know by now) was the next Hitler. Finally, many Holocaust Museums are now demanding that Facebook ban 'Holocaust denial', which again will only radicalize the idiots and cause violence if not war.

    But otherwise I agree that self-incrimination cannot be the only proof of a crime. However there is a deeper issue, which is that maybe campaign finance should not be a crime, and maybe Cohen did nothing wrong here, even if illegal.

  • Scarecrow Repair & Chippering||

    Singling out Joe McCarthy for hunting witches seems like an almighty grand example of cherry picking. You may as well blame it on people who eat bread.

  • Eddy||

    Good point, Hansel and Gretel ate bread and they totally killed the witch.

  • Unicorn Abattoir||

    And were never prosecuted.

  • The Last American Hero||

    For pushing the witch....into...an...oven.

  • Fats of Fury||

    Dorothy Gale murdered an old woman, then she and three of her friends set out to murder the woman's sister.

  • Eddy||

    So you've read Wicked, too.

  • Eddy||

    "Now, to be fair, she *was* holding my clients captive and fattening them up to eat them. It was either my clients into the oven, or the witch."

  • Eddy||

    Darn, I should have said,

    "It should be obvious *witch* of them should have gone into the oven."

  • Agammamon||

    THIS IS NOT WHAT 'STAND YOUR GROUND' WAS INTENDED FOR!!111!

  • Scarecrow Repair & Chippering||

    My God. Seldom have I been more thrilled to be a Reason Commentator. You lot are a fine crowd to hang with.

  • Fats of Fury||

    They also never mention who McCarthy's left hand witchhunter man was. Joe was even Godfather to Bobby's daughter.

  • Eddy||

    Now I'm totally disillusioned.

    Bobby McFerrin, why?

  • Sevo||

    "'I didn't survive the Holocaust to have my name sullied by Trump': How Michael Cohen's Polish surgeon father convinced his son to flip against the embattled President."

    I'm betting it had more to do with self-preservation. Just 'cause.

  • Quicken Support||

    Nice to read these types of Informative Article on The 5th Amendment.

  • Rob Misek||

    Ironic to referrence the holocaust in an article about defence and defendants rights.

    At Nuremberg the holocaust confessions were acquired by torture and threats.

    Why haven't you heard of any of this? Because your government and many others have made it a crime to share evidence that is contrary to the narrative, as factual, provable and demonstrable as it is.

    The 5th hah. You're welcome to be silent while we lie about you and your defence is illegal and inadmissible.

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