Repeat after me: Taking the Fifth is no indicator of guilt or innocence.
One thing that really irks me is armchair lawyers online making proclamations about issues they know fuck-all about.
When it comes to high-profile cases, particularly ones of a political nature, the offering of opinions both unsolicited and uneducated is inevitable. However, it pains me to see the politicized mass media (including the hyper-politicized adult media) run with idiotic, hysterical and even insidious opinions as “proof” that there’s more to a story they’re vested in than is really the case.
Case in point: President Trump‘s lawyer Michael Cohen, who is under investigation by the feds, ‘taking the Fifth’ — i.e., invoking his Fifth Amendment privilege against self-incrimination — in a civil lawsuit brought by human cash register Stormy Daniels.
Here’s a Democrat political hack, and in my opinion, a true moron to boot, telling us why this is so devastating:
Rep. Ted Lieu, as is often the case, could not be more wrong.
The fact that Cohen took the Fifth is evidence of one thing and one thing alone: he and his attorneys are not idiots. That’s all.
And here’s why:
The Fifth Amendment to the U.S. Constitution spells out the right of individuals not to be compelled to testify against themselves. Taking the Fifth, as it’s known, is a basic constitutional right of every American.
David French published a short column on this subject the other day, entitled, “No, Asserting Fifth Amendment Rights Isn’t Incriminating“, and it’s worth reading.
French quoted one of his own previous columns, published “when Twitter exploded” over news that former National Security Advisor Michael Flynn took the Fifth:
It’s tempting to think that only a man with something to hide refuses to testify — especially on a matter of national importance. But in this case, it would be unfair to Flynn. We don’t have any idea whether Flynn has violated criminal laws, and his decision to plead the fifth does not in any way indicate that he’s guilty of a crime. Instead, he’s behaving exactly as a prudent citizen embroiled in a federal investigation should behave. There is a reason beyond our nation’s respect for constitutional rights why a defendant’s decision to assert the Fifth Amendment is inadmissible in criminal trials: It simply isn’t a reliable indicator of guilt.
“Speak under oath when you’re the target or subject of a criminal investigation, and you expose yourself to profound risks,” French continued. “It’s that simple. Just ask Flynn. It turns out that he didn’t take the Fifth soon enough — and ended up pleading guilty to lying to the FBI about non-crimes.”
French deferred to Ken White, a brilliant attorney an exemplary legal analyst whose Twitter account you should all follow:
The Atlantic ran its own piece on this subject, and reached the identical conclusion.
[I]t should not be assumed that Cohen’s move is proof of criminal culpability. All it likely means is that Cohen’s attorneys believe he has a reasonable fear that federal authorities could use what he says in the civil case to build a criminal case against him.
“People who assert the Fifth may be innocent, but may fear that the government might still find a way to use their words against them,” explained Alex Whiting, a former federal prosecutor and a law professor at Harvard University. “Second, people who take the Fifth are often counseled by their lawyers to do so, because defense lawyers usually believe that it is a strategic mistake for the client to talk to the government.”
Cohen doesn’t appear any more of less guilty to any knowledgeable, rational person after taking the Fifth than he was before. Doing so is simply the smart play for any target of a federal investigation: give the folks who are paid to send people to prison less to twist around for their own ends.