By Charles C. W. Cooke
Wednesday, August 17, 2022
In the Washington Post, Jennifer Rubin
fires up her cacophonous lawnmower and points it squarely at the presumptions
that underpin the Fifth Amendment. Donald Trump, Rubin writes, “has every right to avoid self-incrimination”
by remaining silent during his various entanglements with the authorities, but,
if he chooses to do so, he should be punished for it by the voters. Hell, Rubin
suggests, the electorate ought to apply that rule to all politicians,
whose silence during legal proceedings ought to be construed as “putting
themselves above the interests of the country.” “Taking the Fifth,” Rubin
concludes, “should disqualify a politician from taking office.”
There is, of course, no way to prevent voters from
assuming anything within the privacy of their own minds. But, as a
cultural preference, the principle that Rubin is advancing here is
illiberal, grotesque, irrational, short-sighted, and transparently
self-serving. Legally speaking, the Fifth Amendment right against
self-incrimination can be tricky to interpret and superintend; I do not, for
example, believe that the Supreme Court was correct when it ruled in 1965 that
the Fifth Amendment prohibits judges in criminal trials from turning “the
silence of the accused into evidence against him,” even if I’m enthusiastic
about the result of that ruling as a practical matter. But, socially, good
ideas do not need to be mandated in the Constitution to be worthwhile, and the
American fondness for a robust right against self-incrimination is, indeed,
worthwhile. Writing for the majority in the case of Griffin v.
California, Justice William O. Douglas submitted that those who draw
adverse inferences from the invocation of the Fifth Amendment are imposing a
“penalty” on the invoker “for exercising a constitutional privilege,” and
thereby “cut[ting] down on the privilege by making its assertion costly.”
Irrespective of its merits as constitutional law, this concept ought to be
chiseled into every statute book, and every heart, in the country.
Alas, Rubin’s proposal advises the opposite — and not
just in extreme circumstances, or on a more pragmatic case-by-case basis, but
in the form of an ironclad rule: That the Fifth Amendment is only invoked by
bad people, and that bad people should not be politicians. And, from there,
Rubin’s argument grows yet worse. Repeatedly, she highlights what she believes
to be the “obvious conflict” between “[thwarting] a government investigation
and [pledging] to enforce the Constitution”; the “conflict” between a
politician’s “self-interest and the interest in upholding and supporting the
Constitution”; and the “underlying conflict when a candidate for office takes
the Fifth, especially when the issue goes to the core of our democracy.” But,
of course, there is no “conflict” here at all. The Fifth Amendment is in the
Constitution, not separate from it. In what other circumstance, I wonder, would
we view a politician’s decision to exercise a constitutional right as undermining that
right? The making of a political speech? The purchase of a gun? The insistence
upon trial by jury? Worse, by suggesting that those who invoke the Fifth
Amendment are “thwarting . . . government investigations,” Rubin is not only
implying that its protections against self-incrimination are a boon to
criminals and criminals alone, but calling for a broad political standard under
which any accusation that prompts the accused to remain silent is treated as
the functional equivalent of a conviction. In a free country, this will not do.
Rubin’s priors are self-evident. She loathes Donald Trump
and his political allies, and, like William Roper, she does not especially care how much
damage to our legal order is done by those who are in pursuit of them. But I
must ask: Can Rubin truly not imagine a situation in which an earnest
politician might find himself both willing to uphold the Constitution and in
need of the Constitution’s many due-process rights? Can she really not imagine
a circumstance in which the government is targeting a politician, and the government’s
case against that politician is wrong? Can she honestly not conceive of a
difference between self-defense and deviousness?
In support of her false distinction between
“self-interest and the interest in upholding and supporting the Constitution,”
Rubin quotes Laurence Tribe, who has suggested that the “active duty” of a
president to ensure that the laws are enforced “arguably includes an obligation
to avoid invoking various otherwise available privileges — including the
privilege to withhold criminally incriminating information.” This, too, is
unconvincing. For starters, a president would only be called upon to “avoid
invoking various otherwise available privileges” in such a case as that
president were prosecuting himself. What’s more, the case that Rubin is using
as a justification for her proposal involves an entirely different government —
the State of New York — than the one Trump ran as president and would run again
should he run and win in 2024. Surely, we would not wish to create a situation
in which our federal politicians — or, in Trump’s case, our prospective federal
politicians — are unable to exercise their constitutional rights during
disputes with other levels or branches of government, on the grounds that if
those politicians had different jobs than the ones they actually possessed,
such an exercise might plausibly be problematic? And what of all the
politicians who aren’t the president, or who aren’t Donald Trump? And what of
Trump himself? Judging by her output, Jennifer Rubin believes Trump to be an
unmoored, vindictive, corrupt maniac. Is she seriously suggesting that if Trump
were made president once again, his administration brought federal charges
against, say, Gavin Newsom, and Newsom decided to invoke the Fifth in
response, that decision should presumptively end Newsom’s political career?
If the answer to these questions is “Yes,” then Rubin is
a fool. And if the answer to these questions is “No,” then Rubin is . . . still
a fool. The Fifth Amendment is not a toy to be played with until it is
outgrown. It is not a fad to be indulged or discarded at will. It is not a
power tool — useful for this job, useless for that one. It is a fixture, a
standard, a rule. It must be considered — and cherished — in its totality, not
subsumed into quotidian fights or wielded with transient passion. When dealing
with people one dislikes or fears, it can be inconvenient, yes — but not half
as inconvenient as life would be without its protections.
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