The Bill of Rights applies to all
I will state from the start that I would not be qualified to serve on any jury sitting in judgment of Donald Trump. I despise that bumbling fascist. My reasons would take this article well beyond its intended topic, and I make this declaration from the start only to be clear that I am no supporter of him or his political movement.
On Wednesday (10 August 2022), Trump invoked his right protected by the Fifth Amendment of the U.S. Constitution to decline to answer questions in the investigation being conducted by New York State’s Attorney General Letitia James into the activities of the Trump Organization. The case law on that particular part of the Bill of Rights is extensive. In short and relevant here, as anyone who watches American police procedurals knows, we cannot be compelled to testify against ourselves in a criminal case.
So far, so good. Trump is an American citizen in the territory of the United States, and he possesses the same rights of the accused or the suspected that anyone else has. The investigations—and there are multiple—will proceed unto whatever their conclusions may be. What interests me here is the reaction that I saw on social media to Trump’s choice to use the Fifth Amendment. In the view of many, this is a sign of Trump’s guilt.
Trump has brought this on himself, of course. As he said in a rally in Iowa in 2016, speaking of staffers of Hillary Clinton who exercised this same right, “She has people taking the Fifth Amendment. . . like you see on the Mob, right? If you’re innocent, why are you taking the Fifth Amendment?” Calling out his hypocrisy is a legitimate criticism here. What I object to—not on behalf of Trump especially, but for all of us—is the notion that employing this right is an indication of wrongdoing.
“But, but, but…” the upholders of law and order will say, “why would someone with nothing to hide choose to withhold testimony?”
The simple answer is that no one knows, and it is not our place to know. The language of the Fifth Amendment is that “No person… shall be compelled in any criminal case to be a witness against himself.” Which is to say, it is not the duty of the accused to aid in the prosecution’s work. No motive for refusing is specified. I might be guilty; I might be only contrary, or I might realize that elements of the government have developed a disliking of me—or any of an infinite variety of reasons that have nothing whatsoever to do with law and rights and morality. As a practical matter, a defendant may find reasons to offer up evidence that counter’s the prosecutor’s claims or that challenges an interpretation of the law, but said defendant is under no obligation to do so. This is especially so if law-enforcement or the prosecutor are likely to twist the defendant’s words. Ask any attorney what to say in the event of being arrested. The answer will be advice to the effect of “ask for a lawyer and shut up.”
I realize that for many across the American political spectrum, cops and district attorneys are the good guys—at least until they are themselves taken into custody, thus the witticism about how, yes, a conservative is a liberal who got mugged, but a liberal is a conservative who got arrested. White, middle-class citizens often will not personally experience the truth here, or if they do, some judge will say that a bit of marijuana or a bit of rape should not really ruin the life of a good boy from a good family with lots of potential ahead of him.
The same cannot be said for those in this country whose race, gender identity, sexual orientation, religion, or a variety of other factors that make them minorities and thus not likely to be Trump’s supporters. This, of course, assumes that such people get their days in court, and I hope that by now, I do not have to explain why Philando Castile, Breonna Taylor, and Ahmaud Arbery did not have that opportunity. I can nevertheless imagine their having decided that questions about why they were in a particular neighborhood or where the drugs might be were not asked out of mere curiosity with no ill intent toward the person being questioned and chosen to stand mute, as Nero Wolfe loved to say.
Those of us who exercise gun rights should understand what I am saying here. How many times have we been asked why we need to carry a gun, for example, if we are not planning to kill anyone? But that thought lies at the heart of the recent NYSRPA v. Bruen decision that declared the exercise of a right to be enough of a good cause in itself. Some on the left will not be impressed with that reference, so I will add that a state trooper should not be legally allowed to infer from a woman’s refusal to say why she is traveling that she is off to procure an abortion.
So as much as I despise Trump, as much as the worse angels of my nature would like to make an exception here, I have to say that from a constitutional and moral standpoint, I can draw no conclusions about his reasons for refusing to answer questions, nor can I agree with those who would use his employment of the Fifth Amendment against him—other than with regard to his aforementioned hypocrisy.
There are plenty of avenues—including fifth ones upon which he has committed egregious violations of law and norms—of attack against him that do not require us to sacrifice our essential principles.