Trump and the Fifth

Driven by their extreme anti-Trump animus — which rivals their extreme anti-Russia and anti-China animuses — the anti-Trump crowd is up in arms over Trump’s decision to take the Fifth Amendment in a deposition that was part of an investigation into his finances by the New York attorney general, Leticia James. They are mocking and ridiculing Trump for refusing to answer James’s questions, suggesting that only guilty people take the Fifth.

In actuality, Trump was smart to invoke the Fifth. Moreover, the entire episode helps to remind us of what our American ancestors did for us with their insistence on a Bill of Rights after the Constitution was enacted.

One of the reasons that anti-Trump supporters are so hopping mad over Trump’s taking of the Fifth is what lawyers call a “perjury trap.” The idea is to get a person to talk and talk and talk, in the hope of then finding places where he didn’t tell the truth, and then charge him with perjury. In fact, oftentimes the person isn’t even charged with the substantive offense for which he was being investigated. He’s only charged with lying about certain aspects of the situation while he was talking or testifying. 

You will recall that that’s precisely what happened to the famous television personality Martha Stewart. She was being investigated for supposed stock-market violations involving insider trading. When the FBI came to interview her, she unwisely decided not to take the Fifth. She was ultimately convicted  — not of insider trading but rather of lying to a federal agent.

Oftentimes, prosecutors subpoena targeted individuals to give testimony because they lack sufficient evidence to charge them with a crime. They hope that the individual will provide them with the evidence they need to convict or, alternatively, with the opportunity to charge the individual with perjury. 

There is little doubt that James was hoping that Trump would do one or both of these things during his deposition — i.e., incriminate himself and, thereby, help her with her investigation, or lie about some aspect of the investigation, thereby enabling her to charge Trump with perjury. By taking the Fifth, Trump obviously foiled her plans. 

It is also clear that James was furious over Trump’s decision. From the very beginning of the deposition, Trump made it clear that he was invoking the Fifth Amendment. Once that became clear, James could have just adjourned the deposition and let Trump be on his way. Instead, in what was obviously a petty, angry, and vindictive move, she proceeded to ask him the hundreds of questions she had obviously spent several days of hard work preparing and keeping Trump there for four hours, only to have Trump invoke the Fifth over and over again.

Despite the fact that the anti-Trump crowd is equally imbued with an extreme anti-Putin animus, the irony is that many of them wish that James could have done to Trump what Putin does to people in Russia who he is investigating, including people he prosecutes to prevent them from running for president. They wish that James could have forced Trump to testify against his will, such as with torture. 

That’s because they hate the Fifth Amendment, just as they hate the Fourth, Sixth, and Eight Amendments. They wish they had never been enacted. They view them as nothing more than “technicalities” designed to let guilty people go free.

Their model, of course, is the Pentagon’s and CIA’s “judicial” system in Cuba, which is, of course, a mirror image of Putin’s system and, for that matter, the Chinese and Cuban systems. That’s why you never see them criticizing what the Pentagon and the CIA have done at Gitmo. At the Pentagon’s and CIA’s torture-and-prison center in Cuba, there is no Fifth Amendment right to remain silent, just as there is no right to a speedy trial or to trial by jury. At Gitmo, people are tortured into giving evidence against themselves and forced to confess to crimes, just as they are in Russia, China, and Cuba.

Notwithstanding the anti-Trump crowd’s hatred of the Fifth Amendment, it was actually one of the greatest achievements in the history of civil liberties. As Adam Liptak pointed out in the New York Times, “The protection, Justice Arthur J. Goldberg wrote for the Supreme Court in 1964, ‘reflects many of our fundamental values and most noble aspirations.’ Among them, he wrote, were ‘our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt’ and ‘our fear that self-incriminating statements will be elicited by inhumane treatment and abuses.’”

Good for President Trump for exercising the Fifth. It helps reminds us of the critical importance of civil liberties to a free society. 

This first appeared on Jacob Hornberger’s Explore Freedom blog.

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.