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Posts published in “Day: April 28, 2018”

Taking the fifth


The Fifth Amendment to the United States Constitution states in pertinent part: “No person . . . shall be compelled in any criminal case to be a witness against himself.”

The Fifth Amendment was adopted by our founders in reaction to the excesses of Britain’s Star Chamber proceedings where convictions were often obtained by browbeating the accused. Over the years, the U.S. Supreme Court has determined that the right to refrain from testifying against oneself attaches in any civil or criminal proceeding at which the answers might incriminate the speaker in the future.

During the 2016 presidential campaign, candidate Trump claimed that innocent people don't "take the Fifth." He also declared that the Fifth Amendment was most likely to be invoked by members of “the Mob.”

Now that Trump's personal attorney/fixer Michael Cohen has announced he will "take the Fifth" in the civil lawsuit filed by Stormy Daniels, a lot of people are gleefully trying to hoist the president on his own petard. According to Trump's thinking, they say, Cohen's assertion of his constitutional right to remain silent permits the inference of guilt.

As tempting as it is to beat this drum, it is important to remember that protecting oneself against "self-incrimination" is not the same as "admitting guilt." As the Supreme Court has noted, innocent people can be ensnared by ambiguous circumstances. In criminal actions, jurors are routinely instructed not to draw inferences of culpability from a defendant's decision not to testify. And prosecutors may not reference a defendant’s refusal to testify as probative of guilt.

By many accounts, Michael Cohen is likely to be indicted by the U.S. Attorney's Office in the Southern District of New York. If he is indicted, Cohen will be entitled to a fair trial, which includes the presumption of innocence unless and until the government proves him guilty beyond a reasonable doubt.

Michael Cohen is not a sympathetic defendant - not by any stretch of the imagination. But we must soundly reject Trump's simplistic and erroneous pronouncement that invoking the Fifth Amendment is tantamount to proof of guilt.

To accept that notion is to undermine the rule of law; and unfailing protection of the rule of law must transcend and "trump" any distaste for Mr. Cohen and his most famous client.

Candidate Trump aspired to be “the rule of law president.” However, he has repeatedly shown himself to have little, if any, understanding of what that phrase means. Unfortunately, Trump’s misapprehension of the law resonates with segments of our population. The rest of us – and especially my fellow attorneys – cannot allow Trump’s ignorant views, which he asserts with unbridled conviction, to become conventional wisdom.