Don’t Trash Trump If He Takes the Fifth

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.  —The Fifth Amendment (emphasis added)

Donald Trump has returned from his summit with the murderous North Korean dictator Kim Jong Un to the unsettling reality that he is not yet a dictator in his own right. Instead of being welcomed home by the “fake news” media as a statesman and a conquering hero—as an aside, one wonders at times if Trump hasn’t studied Hitler henchman Joseph Goebbels’ attacks on the lügenpresse (lying press)—he finds himself still a “person of interest” in the criminal probe headed by special counsel Robert S. Mueller III.

Both Trump and his increasingly unhinged TV lawyer, former New York Mayor Rudy Giuliani, know that a showdown with Mueller is coming. They can see the metaphorical lights of the oncoming train headed their way. In a matter of weeks, not months, Trump and his legal team—which, fortunately for him, includes some capable attorneys—will have to decide whether to consent to Mueller’s demand that the president submit to an in-person interview under oath. The decision could prove to be far more historic than the confab with Kim.

Like the majority of Americans, I have no love for Trump and his white nationalist “Make America Great Again” political agenda. I remain thoroughly revolted by such policies as the Gestapo-like practice of separating immigrant children from their mothers to enforce the administration’s “no tolerance” stance on illegal border crossings; the travel bans imposed on Muslims seeking to enter the country; the unraveling of environmental protections; and the new tax law that will worsen our already obscene levels of wealth and income inequality.

I am also disgusted by the president’s history of abuse toward women and, more recently, his incendiary call to deport NFL players (presumably to African “shitholes”) for kneeling during the playing of the national anthem to protest police misconduct. I could go on and on, but the point is made: Trump is unfit to lead any nation committed to the principles of equal protection, civil liberties and the rule of law.

Still, that same commitment to civil liberties and the rule of law, honed over decades of work as a criminal-defense lawyer and later as a judge, has left me with a reserve of empathy for Trump when it comes to Mueller, and in particular, the interview demand. The president, like any other citizen, has a fundamental right under the Fifth Amendment that protects him from custodial interrogations conducted by law enforcement. Even if we don’t give a jailhouse-rat’s rump about Trump’s personal well-being, we have to respect that right, lest our own be diminished.

Mueller understandably wants to question and cross-examine Trump to complete his investigation of Russian meddling in the 2016 election and the president’s possible obstruction of justice for acts aimed at impeding the inquiry. No competent investigator would ask for anything less.

In the absence of an agreement between the two sides on a procedure for an interview, Mueller will likely cause a federal grand jury subpoena to be issued, commanding Trump to testify. Apart from pleading the Fifth, Trump’s options at that point will range from bad to worse.

Trump could take steps to dismiss Mueller, following the path of Richard Nixon, who fired Watergate special prosecutor Archibald Cox in the infamous Saturday Night Massacre of October 1973. Doing that, however, could precipitate a full-blown constitutional crisis, pave the way for a Democratic takeover of Congress in the midterm elections, and possibly lead to impeachment.

Alternatively, Trump could contest Mueller’s subpoena, but that would spark a high-profile legal battle that would be expedited to the Supreme Court. Even with its current conservative majority, the court likely would rule against Trump, in light of such precedents as United States v. Nixon (1974) and Clinton v. Jones (1997). Although the Nixon case dealt with subpoenas for documents rather than personal testimony and the Clinton case dealt with a federal civil lawsuit rather than a criminal investigation, both stand for the proposition that no one, even the president, is above the law.

Still another option would be for Trump to preemptively pardon himself for federal liability for all aspects of the Russia probe, including obstruction, pursuant to the powers granted to him under Article II, section 2 of the Constitution. Such a move would be unprecedented and would probably be unlawful, as the concept of a self-pardon is a contradiction in terms. Even if a self-pardon withstood legal challenges, it would, under Supreme Court case law interpreting the pardon power, operate as an acknowledgment of guilt. It also would do nothing to protect Trump from impeachment, as the president’s pardon power does not extend to cases of impeachment.

The least worst of the president’s options—and the one I believe his lawyers ultimately will press him to exercise, even at the risk of causing some political embarrassment—would be to invoke his Fifth Amendment right against self-incrimination and refuse to answer Mueller’s questions.

If Trump does “take the Fifth,” I can just hear the jeers and cackling from liberal pundits like Rachel Maddow and Lawrence O’Donnell. They and others, no doubt, will accurately point out that during the presidential campaign, Trump famously remarked, “The mob takes the Fifth. If you’re innocent, why are you taking the Fifth?”

Back then, Trump was referring to former aides of Hillary Clinton who pleaded the Fifth before congressional committees looking into Clinton’s use of a private email server while secretary of state. Should Trump invoke the Fifth on his own behalf in the future, his inconsistencies and hypocrisy will be boisterously lampooned. He’ll be compared to the mob boss that in some sense he actually is.

But in hoisting Trump on his own Fifth Amendment petard, the pundits will have to take care not to buy into candidate Trump’s characterization of the amendment itself as a refuge for the guilty. It’s not.

The framers included the amendment in the Bill of Rights not to shield criminals, but to counter the practices of the ecclesiastical courts of the Church of England, and the lay courts of the Star Chamber and the High Commission, which deployed inquisitorial methods to extract confessions from heretics and dissenters.

In the landmark 1965 case of Griffin v. California, the Supreme Court held that a jury in a criminal trial cannot draw an adverse inference of guilt from a defendant’s refusal to testify. In 2001, in Ohio v. Reiner, the court went further, observing that the Fifth Amendment “protects the innocent as well as the guilty.”

When the Fifth Amendment is violated, bad things happen. Consider, for example, the 1989 case of the Central Park Five. Five black and Hispanic teens, between ages 14 and 16, were coerced by New York City police into falsely confessing—after they were deprived of food, water and sleep for 24 hours—to the rape of a 28-year-old white woman jogging in Central Park.

Following the arrest of the teens, Trump took out full-page ads in every major New York City newspaper, calling for reinstatement of the death penalty, which the state had effectively abolished in 1984. The teens were convicted and sentenced to prison. Their convictions were vacated in 2002 only after another inmate confessed to the rape and DNA evidence was discovered that linked him to the crime.

This doesn’t mean that we buy into Trump’s “deep state” narrative that has Mueller running a latter-day Star Chamber, attempting to lure the president into a “perjury trap.” It means simply this: that in our efforts to hold Trump accountable to the law and constitutional norms, we hold fast to those norms ourselves. Trash Trump, but not his Fifth Amendment right against self-incrimination.

If Mueller has the goods on Trump, whether for obstruction or conspiring with the Russians to influence the elections, he should be able to make his case without the president’s testimony. I, for one, think he can.

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