The Fifth

Alan Zendell, April 27, 2018

We all learned about the Fifth Amendment to the Constitution in school. We’ve all heard of people “pleading the fifth” to avoid incriminating themselves in court, and we’re all very sure we know what that means. But the amendment is actually more complicated than that. In part, it reads: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury … nor shall be compelled in any criminal case to be a witness against himself. And it says quite specifically that someone in the military has no fifth amendment rights during wartime.

The word “unless” in the excerpt above threw me, but my nephew, who is a judge, explained that it does not imply that you can’t plead the fifth before a federal grand jury, even though that’s what it seems to say in simple English. Comma placement makes all the difference.

I asked about that because I just saw Michael Cohen decline to answer questions in federal court. I guess since I saw him do it he could, or the judge wouldn’t have let him, which brings me to the implications of what Michael Cohen said. We were taught in school that invoking the Fifth Amendment is not an admission of guilt. No, but let’s be clear: taking the Fifth isn’t about guilt or innocence, it’s about not exposing oneself to criminal prosecution. So let’s get back to what’s really of interest to those of us who aren’t lawyers. Is Michael Cohen guilty or isn’t he? And of what?

Before we go further, here’s another bit of information most of us didn’t realize:  …a defendant who [chooses] to testify cannot choose to answer some questions but not others. Once the defendant takes the witness stand, this particular Fifth Amendment right is considered waived throughout the trial. That makes the whole conversation more interesting.

When a defendant like Michael Cohen tells a judge that he “declines to testify under his fifth amendment rights on the grounds that answering questions might incriminate him,” what is he really saying? The key word in that sentence is “might,” which literally means that answering the judge’s questions either will or will not incriminate him. It’s not the judge’s charge to decide which of those he means; it doesn’t matter.

Presumably, the only person who knows which interpretation was implied is Michael Cohen, assuming he understands whether or not his actions were criminal. Given that, I asked myself, if Cohen knew for certain that he hadn’t committed a crime, why would he plead the Fifth? Surely if neither he nor the president was guilty of anything, answering the judge’s questions would serve both their interests.

This is almost too easy. Since Cohen chose to invoke the Fifth Amendment, either he thinks he’s guilty of something, or he’s trying to protect the president from prosecution, and testifying would expose him. I almost feel sorry for Michael Cohen. About as sorry as I never felt for the fictional Ray Donovan.

One thing I’m certain of is that Cohen would only have pled the Fifth if he thought he had no other option. I wrote last week about whether Cohen might flip on the president, wondering if swearing he’d take a bullet for him also meant he’d be willing to spend years in federal prison. I imagine that that decision will ultimately come down to whether Cohen believes Trump will have his back to the bitter end.

While there’s lots of evidence that returning loyalty isn’t one of Trump’s strong suits, maybe Michael Cohen is a special case. Trump has often praised him publicly, telling the media that Cohen is his valued attorney and friend, and how much he depends on him. Trump would never throw his consigliere under a bus, would he?

Cohen might have thought that when he pled the Fifth. But not many minutes later, the president was on the phone to Fox and Friends, claiming that Cohen is a businessman and that, honestly, he doesn’t get involved in Cohen’s business and doesn’t even know what it consists of. And not only is Cohen not his go-to attorney, he actually does only a miniscule part of Trump’s legal work.

Cohen is lucky he doesn’t have tire marks on his face. Does he seriously think he can trust the president to protect him after that? What are the odds that he’ll flip now?

I agree with Trump about one thing. It’s a shame we’re distracted by this stuff when we really should be watching what’s happening in Korea. But whose fault is that Mister President?

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