Jennifer Rubin Takes (Out) the Fifth

I n 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.