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Talbot 'Sandy' D'Alemberte

Scott's pleading of the 5th manipulated legal system

President Ronald Reagan once spoke of the importance of the rule of law in a free society such as ours, a society where the rights of people have been protected for centuries.

"The people," Reagan said, "must participate in … the decisions of government under the rule of law."

But it now is clear that a man who wants to be governor of the state of Florida doesn't believe these words and rules apply to him.

Among the rights bestowed on Americans is the ability to avoid physical and verbal abuse by authorities. More specifically, all Americans have the right to refuse to answer questions during a legal proceeding — if they believe their answers might lead to criminal charges against them.

To invoke the Fifth Amendment, an individual must swear under oath that the reason for doing so is a fear of self-incrimination. There are no other circumstances that permit a person to avoid answering questions during a legal proceeding.

But recent public statements by Rick Scott, the Republican candidate for governor, reveal that the reason he pleaded the Fifth Amendment was not to avoid self-incrimination. Instead it was to obstruct or stop what he now says was a lawyer's "fishing expedition."

Invoking the Fifth Amendment just to avoid a "fishing expedition" can be obstruction of justice, perjury and lead to contempt of court. At issue is a deposition during which Scott was questioned about his role as the CEO of what was then the country's largest health care company. A federal investigation of Scott's company, Columbia/HCA, led to a record $1.7 billion in fines for defrauding Medicare, the health care program for seniors.

During this one deposition, Scott pleaded the Fifth Amendment 75 times.

As a lawyer, officer of the court and candidate for governor, Scott knew he had an obligation to uphold the rule of law and to act in conformance with the legal system's requirements. So when Scott invoked the Fifth Amendment while under oath, he could have only done so for one legitimate reason: to avoid incriminating himself.

That sole allowed reason for invoking the Fifth Amendment — to protect against having your own testimony used against you to prove criminal wrongdoing — is at odds with Scott's recent claim that he refused to testify under oath merely "to stop the fishing expedition."

Such a manipulation of the legal system is an unacceptable and possibly illegal assault on the rule of law and the integrity of our civil justice system. And it promotes disrespect for the neutral and impartial court system.

A person seeking to be Florida's governor must be committed to ensuring that the laws aren't undermined and manipulated, but rather faithfully executed. That obligation is taken on by all lawyers — and this includes Scott — on the day they are sworn into the bar.

The bottom line is this: Anyone who thinks the rule of law doesn't apply to him seriously erodes the rights afforded to each of us. And nothing that undermines the rule of law can be deemed ethical.

Talbot "Sandy" D'Alemberte is past president of the American Bar Association.

Scott's pleading of the 5th manipulated legal system 10/15/10 [Last modified: Friday, October 15, 2010 7:28pm]
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