Donald Trump once said that only the mob takes the Fifth.
“If you’re innocent, why are you taking the Fifth Amendment?” the former president asked at a 2016 rally in Iowa.
But as happens to the best of us, Trump’s contacts with the legal system led him to change his stated outlook. He took the Fifth hundreds of times in New York Attorney General Letitia James’ civil probe this year.
Here’s the former president’s updated legal philosophy, as reported by NBC News in August:
“I once asked, ‘If you’re innocent, why are you taking the Fifth Amendment?’" Trump said in a statement. “Now I know the answer to that question. When your family, your company, and all the people in your orbit have become the targets of an unfounded, politically motivated Witch Hunt supported by lawyers, prosecutors, and the Fake News Media, you have no choice. Accordingly, under the advice of my counsel and for all of the above reasons, I declined to answer the questions under the rights and privileges afforded to every citizen under the United States Constitution.”
Whatever the merits of Trump's “witch hunt” routine, it's good to be wary of a powerful government that can upend people's lives.
Fast forward to Wednesday, when the House Jan. 6 committee released witness interviews that largely showed Team Trump figures invoking the sacred right, in response to questions ranging from grave ones implicating the survival of American democracy to simple ones, like: How old are you?
Indeed, the lawyer for John Eastman, one of Trump’s potential future co-defendants, began his client’s deposition with a soaring tribute to the right that would dominate Eastman’s and other transcripts released by the committee on Wednesday.
“The right is fundamental to our system of justice,” attorney Charles Burnham told the committee during Eastman’s deposition in December 2021. He added that the Supreme Court has called the Fifth Amendment a safeguard against heedless, unfounded or tyrannical prosecution that protects the innocent and guilty alike.
“We make no apologies for seeking Fifth Amendment protection as so many law-abiding Americans have done throughout history," Burnham said.
Eastman, himself a lawyer who advised Trump in the attempt to overturn the 2020 election, proceeded to invoke the Fifth when asked about the alleged scheme. Another alleged player in the plot, former Department of Justice official Jeffrey Clark, likewise got used to saying “Fifth” in response to committee questions, his deposition transcripts revealed.
The Jan. 6 committee isn’t a star chamber or an anti-Communist crusade. But Eastman and Clark’s invocations still may have been wise.
There’s a lesson in the lawyer's lofty language, even if the Jan. 6 committee isn't tyrannical. That fear of overbearing authority was cited by the Supreme Court in a 1955 case, involving the infamous anti-Communist House Un-American Activities Committee. In noting the importance of the right against self-incrimination, the high court in that case recalled “the horror of Star Chamber proceedings,” referring to the abusive old English court whose mere mention today signals an oppressive government effort.
The Jan. 6 committee isn’t a star chamber or an anti-Communist crusade. But Eastman and Clark’s invocations still may have been wise. The two men were among those called out by the committee this week as potentially being guilty of crimes. (The DOJ, of course, isn't bound by those referrals, as explained here.)
Of course, people remain free to judge Eastman, Clark and others for not helping the committee — and, in turn, the public — learn more about the anti-democratic plot. That’s a key difference between a court of law and the court of public opinion; the former has rules about evidence and testimony, while the latter is whatever we want it to be. Just as the committee’s criminal referrals aren’t legally binding on the DOJ, we don’t have to view refusals to answer questions through a legal lens if we don’t want to.
So it's fair game to agree with the committee's summary report that called it "particularly troubling" when former Trump White House national security adviser Michael Flynn took the Fifth when asked if the violence on Jan. 6 was justified.
As with much else from the Trump era and its aftermath, the latest news has served as another strange lesson in constitutional law, even if provided by unsavory characters who may well have abused their privileges in their attempts to stifle the committee. Whatever happens next with Eastman, Clark and company, their now-public invocations will serve another public function, underscoring that rights aren't only for the innocent.