WASHINGTON â Donald Trump is fickle about the Fifth.
In 1990, he invoked his Fifth Amendment right to avoid self-incrimination by refusing to answer 97 questions in a divorce deposition. But last year, he ripped into Hillary Clinton aides repeatedly for exercising the same privilege during the congressional investigation into her private email server.
âThe mob takes the Fifth,â Trump told a campaign crowd in Iowa last September. âIf youâre innocent, why are you taking the Fifth Amendment?â
Now, itâs Trumpâs fired national security adviser, Michael Flynn, who is invoking the Fifth, hoping to avoid handing over documents to a Senate panel investigating Russiaâs meddling in the 2016 election.
The White House has so far kept quiet about Flynnâs move. But Democrats are eagerly circulating Trumpâs past comments suggesting sinister motives for it.
âTrump previously declared that only people who are guilty invoke the Fifth Amendment,â the Democratic National Committee said in an email including Trumpâs past quotes. It added that Trump had continued to defend Flynn even after firing the aide for lying about his contacts with Russia during the campaign.
Trump has veered back and forth on what it means to invoke the Fifth.
In 2014, then-businessman Trump had some free advice for Bill Cosby, who was facing a barrage of sexual assault accusations.
âIf you are innocent, do not remain silent,â Trump tweeted. âYou look guilty as hell!â
But in 1998, back when Trump still was getting along with the Clintons, he suggested that Bill Clinton might have been better off to plead the Fifth during the investigation into his affair with Monica Lewinsky, saying, âIâm not even sure that he shouldnât have just gone in and taken the Fifth Amendment.â
In 1990, during his divorce from first wife Ivana, Trump invoked the Fifth Amendment nearly 100 times, mostly âin response to questions about âother women,ââ according Wayne Barrettâs biography âTrump: The Greatest Show on Earth.â
Trump is far from the only politician to insinuate that invoking the Fifth is evidence of guilt when itâs used by others.
When Sen. Joseph McCarthy was on a hunt for communist sympathizers in the 1950s, his committee pushed the idea that any witness who refused to testify was a âFifth Amendment Communist.â
McCarthy called the refusal to testify âthe most positive proof obtainable that the witness is a Communist.â
In 1986, when fired Reagan aide Oliver North invoked the Fifth in the Iran Contra scandal, Democratic Sen. John Glenn of Ohio unleashed withering criticism: âI canât think of anything that is going to polarize Capitol Hill more or make this into a political football any more than people taking the Fifth or stonewalling it and preventing all the information from coming out.â
In 2013, then-Republican National Committee Chairman Reince Priebus, now Trumpâs chief of staff, said taking the Fifth was a sign that âthereâs clearly something serious the American people are not being told,â when IRS official Lois Lerner refused to testify in an investigation into political bias in the Obama administrationâs treatment of tax exempt organizations.
Flynnâs lawyer, in a letter to the Senate committee, said Flynnâs decision to invoke his constitutional protection was not an admission of wrongdoing but rather a response to the current political climate, in which Democratic members of Congress are calling for his prosecution. Earlier, Flynn requested immunity in exchange for agreeing to cooperate with the committee.
Trump himself tweeted in March that Flynn should ask for immunity because heâs facing âa witch hunt.â
Last year, though, during the Clinton investigation, Flynn declared, âWhen you are given immunity, that means that you probably committed a crime.â
Legal scholars are critical of those who try to taint others for invoking the Fifth, saying it clouds an important constitutional right and feeds into public misperceptions that taking the Fifth automatically suggests someone is guilty.
âThis is a really important part of the Bill of Rights,â said Emory Law Professor Mary Dudziak. âThe idea that itâs shameful to plead the Fifth is on some level deeply problematic and we should push back from that.â
She added that in order for the right to work well, âit has to work in periods that seem not to be admirable as well as periods when we want people to be able to protect themselves.â
James Duane, a professor at Regent University School of Law in Virginia, said invoking the Fifth isnât a sign of guilt or innocence but rather an indication that the person understands the risks that can come with testifying, even for someone who is innocent.
Politicians, he added, love to assume that that thereâs something sinister about other people invoking the Fifth, âbut when the shoeâs on the other foot, then they clam up in a heartbeat.â
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