President Donald Trump has derided the Fifth Amendment as the refuge of mobsters, and during Watergate President Richard Nixon infamously told aides, “I want you all to stonewall it, let them plead the Fifth Amendment, cover up, or anything else.”
Despite the negative implications of taking the Fifth, the US Supreme Court has long regarded the right against self-incrimination as a venerable part of the Constitution and tried to ensure that a witness’ silence not be equated with guilt.
In a possible switch in sentiment, Trump may end up taking the Fifth, his lawyer Rudy Giuliani suggested on Sunday.
As he responded to questions about special counsel Robert Mueller’s Russia investigation, Giuliani declined to rule out Trump invoking his right against self-incrimination. Giuliani also said Trump wants to testify and that “every lawyer in America thinks he would be a fool to testify.”
On a separate legal issue, Giuliani said Trump could resist a subpoena to testify – an assertion that conflicts with Supreme Court precedent. Mueller has reportedly raised the possibility of subpoenaing Trump as part of his investigation into any Trump campaign connection to Russia’s interference in the 2016 election.
The Supreme Court in 1974 rejected Nixon’s claim of executive privilege to hold back Oval Office tape recordings related to the burglary of the Democratic National Committee headquarters at the Watergate building. In 1997, the court ruled that President Bill Clinton could not invoke presidential immunity to avoid a civil lawsuit by a woman claiming he had sexually harassed her when he was governor of Arkansas.
If Trump wants to avoid an interview with Mueller’s team, his most likely route may be the Fifth Amendment.
As Trump’s own remarks have made plain, any effort to elude Mueller, including by pleading the Fifth, could have political repercussions. “If you’re innocent, why are you taking the Fifth Amendment,” Trump said as a candidate in 2016, complaining about aides to his Democratic opponent, Hillary Clinton, who faced inquires over the use of a private email service when she was secretary of state.
“The mob takes the Fifth,” Trump declared.
But in the judicial realm, the right is revered. Ratified in 1791, the Fifth Amendment protects a person from being “compelled in any criminal case to be a witness against himself.” The amendment reflected an effort to protect witnesses from a kind of inquisitorial Star Chamber of 15th Century England.
“Historically, the privilege was intended to prevent the use of legal compulsion to extract from the accused a sworn communication of facts which would incriminate him,” the Supreme Court observed in a 2000 case.
In a 2001 decision, the justices reiterated that the Fifth Amendment covers people irrespective of guilt or innocence, emphasizing that one of the Fifth Amendment’s “basic functions” is to protect “innocent” people “who otherwise might be ensnared by ambiguous circumstances.” Criminal defense lawyers warn that witnesses may fall into a prosecutorial trap and produce incriminating answers.
In a milestone 1965 ruling, the justices bolstered the principle that the Fifth Amendment prevents prosecutors and judges from using a person’s silence against that person. “The Fifth Amendment,” the court said, “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.”
Through the years, the Supreme Court has affirmed that notion even as it has imposed new requirements on witnesses. In a 2013 case, the justices by a 5-4 vote allowed prosecutors to introduce in court evidence of a defendant’s silence when interrogated about shotgun shells found at the scene of the crime, because he had not expressly invoked his right under the Fifth Amendment.
Any presidential assertion of the Fifth Amendment spawns an array of political considerations. In 1998, independent counsel Kenneth Starr obtained a subpoena to compel Clinton’s testimony regarding an affair with former White House intern Monica Lewinsky. Clinton did not assert the Fifth and agreed voluntarily to answer questions, which prompted Starr to withdraw the subpoena.
Trump on Monday continued his efforts to discredit Mueller’s investigation. He said he has not obstructed the “the Russia Witch Hunt.” “There is no O, it’s called Fighting Back,” he tweeted.
Last Friday, Trump emphasized that he wanted to talk to Mueller’s team.
“I would love to speak,” he told reporters. “Nobody wants to speak more than me. … I would love to speak because we’ve done nothing wrong.”