There isn’t a competent lawyer in the practical blawgosphere who hasn’t warned defendants to remain silent and invoke their right to counsel.  Immediately. Every time.  No matter how smart you think you are, or what they say to you to get you to talk.  Don’t do it.

The rule of Edwards v. Arizona is that once a suspect has invoked right to counsel, the police cannot continue to interrogate in the absence of counsel, and the defendant cannot un-invoke his right to counsel without an attorney present.  In Michigan v. Jackson, the Supreme Court extended the rule to post-arraignment interrogations as well, where the defendants requested counsel at arraignment but were interrogated again by police nonetheless.  While the protection shifted from the 5th Amendment to the 6th Amendment, the rationale was the same.

None of this seems like striking constitutional law today, yet there is a move afoot to change it.  This alone might not be terribly shocking, but for the fact that the move comes from the Obama Department of Justice and Solicitor General Elena Kagan.  From the AP :

The Obama administration is asking the Supreme Court to overrule long-standing law that stops police from initiating questions unless a defendant’s lawyer is present, another stark example of the White House seeking to limit rather than expand rights.

The Justice Department, in a brief signed by Solicitor General Elena Kagan, said the 1986 decision “serves no real purpose” and offers only “meager benefits.” The government said defendants who don’t wish to talk to police don’t have to and that officers must respect that decision. But it said there is no reason a defendant who wants to should not be able to respond to officers’ questions

Like a ten year old on Christmas morning, we know that there’s no Santa Claus but still want so desperately to believe.  We want to believe that Obama’s Justice will be different than his predecessor’s.  That Elena Kagan could argue with a straight face that “there is no reason” is laugh-out-loud silly, as if this was some Harvard Lampoon parody of how the Justice Department should behave. 

What purpose is served, SG Kagan?  We have extremely vulnerable defendants, having just been arraigned, learning of the steep charges and severe potential sentence, and detained by the government.  He’s confronted by agents permitted by law to lie and manipulate him into talking with pseudo-promises they can’t and won’t keep.  He’s feeling hopeless, friendless, overwhelmed and scared to death, and the only voice with unfettered access is that of a smooth-talking government agent who jingles the keys to the prison cell in his hand.  What purpose indeed.

It seems that our government’s policies on civil rights and freedoms range from bad to worse.  Bad is the best we can expect, even from the administration of President Obama.  For the memory impaired, the concern for the Constitution wasn’t a whole lot better under Bill Clinton.  It was just worse with George Bush, which made Clinton seem not nearly as bad.  But he wasn’t anything close to good.

The different here is that our President taught Constitutional Law.  Our Solicitor General was a Harvard law prof and Dean, and clerked for Thurgood Marshall.  Did she learn nothing?  I can’t believe that, but can’t imagine that she could expect to retain credibility after making statements challenging the obvious, as if a prosecutor through and through.  They simply must know better, yet choose to play the government game.  After all, now they’re the government, and as with all government’s, the Constitution is in their way.

A buddy of mine who holds elected officer has the “hat” theory.  As soon as elected officials put on the “hat” of office, it squeezes their heads so tight that they can no longer think.  They forget all they knew before, of the wrongs and the remedies, of why somebody decided to vote for them in the first place, and assume the position dictated by the hat.  He says they can’t help themselves because it’s the hat.