‘You Have The Right To Remain Silent — JUST KIDDING!’ Says Biden Administration

// It’s probably fair to say that the first scrap of constitutional law mastered by an American child is Miranda. Every police procedural has snuck the right to remain silent into the script since at least Kojak. It’s an inescapable nugget of constitutional fabric — you can’t watch Spongebob without learning it. Most shows don’t carry the bit through to the equally important “right to an attorney” part, but that initial right is tattooed on the brains of Americans early.

Kids say “you have the right to remain silent” when they play cops and robbers on the playground!

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So it should come as little surprise that Miranda take its place alongside Roe, Affirmative Action, and — eventually — Brown v. Board as cornerstones of constitutional order that this Supreme Court plans to bulldoze. As the real Federalist Society heads out there will point out, “if it’s really a right, how come the word Miranda wasn’t in the Constitution, hmmmmm?”

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And Biden’s Department of Justice, under the helm of Merrick Garland, is right there waving the bulldozer in on this one.

Honestly, between punting on civil rights inquiries and refusing to ask any serious questions about how January 6 happened, this Justice Department greases the wheels of fascism like it’s competing at the Mr. Universe pageant.

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The Court heard oral argument in Vega v. Tekoh this week. I hadn’t really tracked this case until arguments this week, but having gone back and read the filings, this case is nuts.

A sheriff’s deputy named Carlos Vega held Terence Tekoh, a nursing assistant, in a windowless, soundproof room for over an hour. Without providing any Miranda instructions, Vega produced a “confession” from Tekoh. Tekoh testified that this investigation was “replete with profanities and threats to have Respondent and his family deported” — Tekoh is a Cameroonian immigrant — and that at all times Vega refused to allow Tekoh to speak to a lawyer or any of his supervisors.

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Pretty cut and dry Miranda violation. Vega used this confession to get Tekoh prosecuted. Ultimately the jury acquitted Tekoh. Take a second to consider how completely bullshit a case in 21st century America has to be for a jury to acquit an immigrant when the prosecution says “we have a written confession.”

Tekoh filed a §1983 action for violation of his civil rights. The Biden administration, answering the question no one asked them, decided to roll in as amicus on Vega’s side. Just like all the people who voted for this administration would have OBVIOUSLY wanted.

Look, the administration has an interest here. It doesn’t want a bunch of §1983 cases arising to gum up counter-terrorism interrogations or anything like that. And if the brief limited itself to “we caution the Court to make clear that §1983 relief isn’t available in every outlier circumstance,” that would be fine.

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Did they do that? Oh, you already know the answer:

The Miranda rule, which was crafted to account for practical realities, makes sense in light of those realities only if it is treated as a constitutional rule of evidence, rather than a rule of law-enforcement procedure.

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Yep, they went after the very idea of Miranda.

Again, we all learned this rule from TV shows we call police procedurals for a reason. Issuing these instructions is the heart of police procedure. Some forces hand out little cards with scripted instructions to make sure everything is done on the up and up. The DOJ is redefining “procedure” like it was “sanitation.”

It also doesn’t make any sense.

The DOJ position is that since the jury acquitted Tekoh… no harm, no foul. Miranda only exists to give defendants an avenue to toss a confession in their eyes — like tainted evidence or something. But that’s not what Miranda was all about.

As Tekoh’s brief explains, Miranda is about informing defendants of their Fifth Amendment “right not to be compelled to be a witness against oneself in a criminal trial.” The civil rights violation occurs when the confession is used against him at trial without warning. Full stop. As for the “tainted evidence” comparison, as one Supreme Court opinion put it, “Unlike the Fourth Amendment’s bar on unreasonable searches, the Self-Incrimination Clause is self-executing.”

The DOJ position doesn’t strike down Miranda, it just strips the “self-executing” part of this right and relegates it to another Fourth Amendment style balancing test. And no one gets away with illegal searches and seizures under those! The federal docket is paved with decisions that read, “obviously this was an illegal search BUT we figure the defendant was guilty anyway.” Turn the right against self-incrimination over to that model and just see what happens. We’ll have coerced, extorted confessions getting rubber-stamped by judges by the end of the week.

It’s not so much that the DOJ is wrong — though it is — it’s the way this administration seems willing to play lead blocker for the worst judicial abuses. What does a brief like this accomplish other than add credibility to the inevitable opinion declaring Miranda advisory? Who do they think is going to end up on the wrong end of it when they abdicate their constitutional duty like this?

Check out all the filings here.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Topics

Constitutional Law, Courts, Fifth Amendment, Miranda, Police, Supreme Court, Vega v. Tekoh