During a campaign rally in Iowa in 2016, Donald Trump criticized former Hillary Clinton staffers who had invoked their Fifth Amendment rights against self-incrimination in the case involving her private email system.
By pleading the Fifth, Trump suggested, they were admitting their guilt. “The mob takes the Fifth,” Trump told the crowd. “If you’re innocent, why are you taking the Fifth Amendment?”
Trump’s assessment has taken on new meaning this week, as his longtime attorney and “fixer” Michael Cohen pleaded the Fifth in the civil case brought against him by adult-film star Stormy Daniels. But contrary to the president’s views, it 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.”
Daniels brought her suit against Cohen in March; she alleges that he paid her hush money in the closing days of the 2016 campaign to keep her alleged affair with Trump secret. But Cohen had been on law enforcement’s radar long before then. His work for Trump has been a focus of Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 election and potential obstruction of justice by the president. In early April, his home, office, and hotel room were raided by the FBI.
By pleading the Fifth, Cohen could be trying to shield himself from revealing information in the civil case that could be potentially helpful to federal prosecutors should he be indicted. While there are no Fifth Amendment rights in civil cases, Cohen is able to invoke them because of the possibility that he could be indicted in criminal court on matters related to the civil trial.
“Most people in most situations don’t have to take the Fifth. But given that there’s a criminal investigation of him pending, it’s not that unusual, because he could end up saying things in the deposition that could end up harming him in the criminal matter,” said Randall Eliason, a law professor at George Washington University and a former federal prosecutor focusing on white-collar crime. While Eliason was careful to say it doesn’t amount to an admission of guilt, “it’s not nothing either,” he added. “It indicates that you have reason to be concerned that something you might say might incriminate you.”
Cohen’s invocation could affect the civil case’s proceedings. Daniels’s attorneys could argue that it shows her claims about his culpability are correct: that Cohen was representing Trump when he paid Daniels the hush money, and that Trump’s failure to sign the nondisclosure agreement Cohen wrote makes it invalid. Her lawyers would be legally allowed to do so: Unlike in criminal cases, there’s no prohibition in civil cases against using someone’s Fifth Amendment plea against them. If Cohen is indicted in federal court, the Daniels case could be stayed pending a potential criminal trial.
“Taking the Fifth can be a precautionary measure because talking to the government rarely helps, and often hurts, the person under investigation. And because the burden of proof is on the government, defense counsel will want to see what the government is able to prove before showing their hand,” Whiting said. “So for these reasons, one should never infer guilt from an assertion of the Fifth Amendment, even though, of course, President Trump has famously said otherwise.”
It’s one thing for people to conclude, on the basis of what is reported and publicly known—Cohen’s own public statements and admissions, his associations, the unusual nature of the search warrant executed against him, as well as the president’s statements—that he might be guilty of something. But taking the Fifth shouldn’t be grouped with those factors, because it’s what just about any lawyer would tell a client facing a federal investigation to do, and because it wrongly assumes that the protection against self-incrimination is only for those who are guilty.
The Fifth Amendment has a long history. Its protection against self-incrimination is tied to backlash against the British Courts of Star Chamber. In the 15th through 17th centuries, the accused were coerced, sometimes through torture, into confessing to crimes. The amendment helps prevent the state from forcing people to admit to crimes they didn’t commit, and in doing so, protects the right to a fair trial. It also helps forestall pretrial abuses—for example, by dissuading police from beating false confessions out of suspects in interrogations rooms.
“The establishment of the privilege is closely linked with the abolition of torture,” wrote former solicitor general Erwin Griswold in a 1954 journal article. “If a man has done wrong, he should be punished. But the evidence against him should be produced and evaluated by a proper court in a fair trial. Neither torture, nor an oath, nor the threat of imprisonment for contempt should be used to compel him to provide the evidence to accuse or convict himself.”
At the time of Griswold’s writing, public opinion, radicalized by the Red Scare, had turned toward support for eroding basic rights in the name of the fight against communism. His vigorous defense of Fifth Amendment rights would ultimately prevail, however. In the 2001 Supreme Court case Ohio v. Rainer—in which a suspect invoked her Fifth Amendment rights while maintaining her innocence—the justices unanimously concluded that “the privilege protects the innocent as well as the guilty.”
For liberals and other Trump opponents watching the Cohen case unfold, it may be tempting to assume that he is guilty, and that his guilt is even more obvious because he took the Fifth. But that assumption erodes the cultural foundations of due process, under which it’s the state’s job to prove the accused guilty, not the accused’s job to prove their innocence. Trump was categorically wrong when he said only guilty parties assert their Fifth Amendment rights. His critics should avoid making the same mistake.
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