The Corner

Law & the Courts

No, Asserting Fifth Amendment Rights Isn’t Incriminating

Michael Cohen leaves court in New York City, April 16, 2018. (Drew Angerer/Getty Images)

With the news that Michael Cohen, one of Donald Trump’s personal attorneys, intends to assert his Fifth Amendment rights in the Stormy Daniels litigation, parts of political Twitter have naturally and predictably gotten a little bit hysterical. While I won’t repeat all the tweets asserting that this somehow helps establish the criminal case against Cohen, I’ll put one below, from Democratic member of Congress Ted Lieu:

No. As I’ve written before, when Twitter exploded over news that Michael Flynn took the Fifth:

It’s tempting to think that only a man with something to hide refuses to testify — especially on a matter of national importance. But in this case, it would be unfair to Flynn. We don’t have any idea whether Flynn has violated criminal laws, and his decision to plead the fifth does not in any way indicate that he’s guilty of a crime. Instead, he’s behaving exactly as a prudent citizen embroiled in a federal investigation should behave. There is a reason beyond our nation’s respect for constitutional rights why a defendant’s decision to assert the Fifth Amendment is inadmissible in criminal trials: It simply isn’t a reliable indicator of guilt.

Speak under oath when you’re the target or subject of a criminal investigation, and you expose yourself to profound risks. It’s that simple. Just ask Flynn. It turns out that he didn’t take the Fifth soon enough — and ended up pleading guilty to lying to the FBI about non-crimes.

For a dose of legal reality, I associate myself with this tweet, from my friend and law-school classmate Ken White (better known online as “Popehat”).

Exactly so. I don’t know if Michael Cohen is guilty of any crimes, and his decision to assert his constitutional rights leaves me just as ignorant as I was the day before his statement.


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