• A lot of people assume, if you exercise your Fifth Amendment right against self-incrimination, that means you’re guilty.
• President Donald Trump himself has made this accusation in the past.
• But now, Trump’s own lawyer says he may take the Fifth if he has to testify in the Russia probe.
• Criminal defence attorney Ken White says this assumption is wrong and damaging – the Fifth Amendment serves to protect the innocent and the guilty.

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“The mob takes the Fifth Amendment,” then-candidate Donald Trump said at a campaign rally in September 2016. “If you’re innocent, why are you taking the Fifth Amendment?”

Trump was talking about what he said were five Hillary Clinton associates (the real number was three) who had invoked their Fifth Amendment right against self-incrimination to avoid testifying about her private email server.

Of course, now Trump has changed his mind about the merits of the Fifth Amendment, which his lawyer Rudy Giuliani says he might invoke if he has to testify in the special counsel Robert Mueller’s probe.

A lot of his detractors today feel roughly the way he felt two years ago: The Fifth is for the guilty, if you’re invoking it that means you have something to hide, and an innocent person shouldn’t fear discussing his activities with federal investigators or in front of a grand jury.

Trump was wrong then, and his detractors are wrong now.

There are a wide variety of reasons to surmise that Trump and his associates have committed crimes. But his exercise of constitutional rights shouldn’t be one of them.

The Fifth Amendment is not just for the guilty – it’s also for those who would like to stay innocent

I discussed the rationale behind the Fifth Amendment with Ken White this Wednesday on a special edition of my KCRW podcast, Left, Right & Center.

You might know Ken from Twitter as @popehat. He’s also a criminal defence lawyer practicing in Los Angeles, and was formerly a federal prosecutor.

Ken made the case that Trump and Giuliani are absolutely right to worry about perjury traps and to resist testifying – whether or not Trump is guilty of anything.

“Time and again in modern times, you see people get taken down not by the underlying conduct that’s being investigated, but by how they react to the investigation,” Ken said.

He added: “I would give a client who had done what they are accused of and a client who had not done what they are accused of more or less the same advice: That it’s incredibly hazardous to go in and talk to the government.”

Ken urged that we not lose sight of the original purpose of the constitutional right against self-incrimination: It serves to protect the innocent from situations in which they can be pressured into confessing or committing perjury. The amendment is a recognition of the way governments can abuse their enormous power over criminal defendants, a problem that could be seen all the way back to the Salem Witch Trials and before.

My conversation with Ken

A partial transcript of our discussion, edited for length and clarity, follows below. You can listen to the whole conversation – which also addresses the new revelations about corporate payments to Trump attorney Michael Cohen – by using the embedded player or at this link.

JOSH BARRO, BUSINESS INSIDER & KCRW: Let’s talk about perjury traps. Here’s an exchange between ABC News anchor George Stephanopoulos and Trump lawyer Rudy Giuliani on ABC’s This Week this past Sunday, discussing whether Trump will give an interview to special counsel Robert Mueller.

GEORGE STEPHANOPOULOS: But you believe the president is telling the truth. If you believe that, if you have that conviction, you’re his attorney, why don’t you say, “Go in, talk to Robert Mueller, tell the truth.”

RUDY GIULIANI: Because I wouldn’t be an attorney if I did that, George. I’d be living in some kind of unreal fantasy world that everybody tells the truth. I’m not gonna set – they don’t have a case on collusion, they don’t have a case on obstruction, which is why they’re asking all these cockamamie questions about, “What do you feel? What do you think?” I’m gonna walk him into a prosecution for perjury like Martha Stewart did? I mean she’d tell you –

STEPHANOPOULOS: She didn’t tell the truth.

GIULIANI: Martha Stewart would tell you that she told the truth and they set her up. I don’t know that, I don’t want to get into that case, I don’t know.

BARRO: So, Ken, I hear a lot of people set up frames like the one Stephanopoulos did there: “If the president doesn’t have anything to hide, he shouldn’t have any concern about going in with Mueller to sit down and tell the truth.” Is that right?

KEN WHITE, CRIMINAL DEFENCE ATTORNEY: It’s absolutely wrong, and you’re not going to hear me say this very often, but Rudy Giuliani is absolutely right in this circumstance. No sane or competent criminal defence attorney would let their client walk into an interview like this. Let alone a client like Donald Trump.

BARRO: Let’s talk about that Martha Stewart example. The government was never able to make a case that she’d actually engaged in insider trading, but they still prosecuted her for lying, and they sent her to jail for that. Is that a common thing?

WHITE: It’s absolutely a common thing. Time and again in modern times you’ve seen people get taken down not by the underlying conduct that’s being investigated but by how they react to the investigation. Martha Stewart is just one example because she went in, acted like an important, used-to-deference, powerful media magnate who says what she wants, and you just can’t act that way when you’re talking to the FBI.

BARRO: So when the president is squirrelly about whether he’s going to do an interview, and he talks about how he’s concerned that investigators aren’t going to be “fair” to him, and that’s why he doesn’t want to talk – is what you’re saying that we should not take any of that as a sign that the president actually did anything wrong?

WHITE: That’s right. Let me put it this way. I would give a client who had done what they are accused of and a client who had not done what they are accused of more or less the same advice: that it’s incredibly hazardous to go in and talk to the government, because, you know we’re not robots, we’re human. We misremember things, we panic in the moment and do something stupid, tell a stupid lie out of the extreme stress of being under interrogation by very trained interrogators. All these things can happen. The truth will not necessarily set you free when you are talking to the federal government.

BARRO:So, basically, just because you’re paranoid doesn’t mean they’re not out to get you.

WHITE: More or less, yes.

BARRO: Suppose the president is compelled to testify. He gets there, then he asserts his Fifth Amendment right. I assume you would say we should not take that as an admission of guilt.

WHITE: Absolutely we shouldn’t. And I understand how tempting it is – and I understand that the narrative is no public official should take the Fifth, they should resign instead of do that – but the advice that any sensible criminal defence attorney would give the president would be to take the Fifth in that circumstance. They are absolutely out to get him, they are absolutely hoping that his statements will incriminate him, they are absolutely hoping – and I think pretty reasonably – that he’ll talk himself into further trouble. Any sensible lawyer would tell him to take the Fifth in that circumstance. There is, I think, no legal upside to answering questions. The only compelling reason to do so is the political reason.

BARRO: What is the theoretical rationale for a right against self-incrimination? Why was this put in the Constitution? If you committed a crime, why shouldn’t you have to answer questions in court about whether you did so?

WHITE: The basic idea that you don’t have to help put the shackles on yourself. The government has to make its case on its own, and the government’s immense power over us as individuals is not something that can be used to make us confess.

BARRO: But there’s more than just legal considerations here. The constitutional right is against self-incrimination, it’s not a right to continue your employment while asserting your right against self-incrimination. Should we be expecting something out of the president that we don’t necessarily expect out of an ordinary defendant or witness in a criminal proceeding? Should we say that he has an obligation to the public to answer these questions?

WHITE: My perspective is as a criminal defence attorney, so I have conflicting views here. On the one hand, I agree, yes, I would like it if our public officials generally were not taking the Fifth rather than answering questions about their official duties. On the other hand, I don’t like the narrative being pushed that asserting your rights is inherently suspicious or a sign of a crime. Ninety-nine times out of a hundred that narrative doesn’t hurt people like the president. It hurts the powerless among us, the people that those rights are most aimed to protect.

BARRO: I think there’s an interesting implication in what you’re saying here. We have a president who for a year and a half has been casting all sorts of aspersions upon the FBI and the Department of Justice. It sounds like what you’re saying implies that he’s right about some of the criticisms about the way our criminal justice system works, not just with regard to him, perhaps especially with regard to people who are much less powerful than him.

WHITE: I think he’s right but I don’t know that he’s sincerely right. I don’t think that he has discovered and adopted some sort of pro-criminal defence type attitude towards our system. I think he is very much finding that it’s useful to talk about these things and use them as a plausible excuse for why he might take the steps that he takes.

BARRO: Is there any way to turn this around and take a productive political conversation out of it? Because you have a lot of Republicans now saying the FBI and the system are biased against Trump and hopelessly politically compromised. That it’s not a problem with the way they generally work, but that they are specifically training their guns on the president for no good reason. And then you have Democrats who have basically spoken up in defence of the whole system in a lot of cases, insisting that things work well and that’s what we’re seeing with regard to the president. Is there any way to have a conversation about criticisms that are true and have much broader implications than for the president’s own legal situation?

WHITE: I would like that there are, but I’m not sure history and experience point to that. A lot of the narratives now about how a special counsel is out of control sound very much like the criticisms of Independent Counsel Kenneth Starr during what started out as the Whitewater investigation of President Clinton. It went very far afield, and a lot of the same criticisms about going far afield were, at the time, very strongly embraced by Democrats and very strongly refuted by Republicans. Now, it is to some extent the opposite. So I’m a little cynical about coming up with a principled view to these things that isn’t just going to be twisted to whoever happens to be under the gun at the moment.

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