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OPINION | PHILIP MARTIN: Looking guilty as hell

by Philip Martin | August 14, 2022 at 2:08 a.m.


At a campaign rally in Iowa in 2016, Donald Trump took a shot at the IT guy who set up Hillary Clinton's infamous private email server. During a deposition in a lawsuit brought under the Freedom of Information Act, the tech guy asserted his right against self-incrimination more than 125 times.

"The mob takes the Fifth," Trump said. "If you're innocent, why are you taking the Fifth Amendment?"

And then, last week, Trump took the Fifth 440 times, refusing to answer questions for investigators working for New York Attorney General Letitia James' office. He was self-aware enough to notice the apparent hypocrisy, and offered a perfectly reasonable explanation for his actions. His thinking had evolved; he had grown.

"I once asked, 'If you're innocent, why are you taking the Fifth Amendment?' Now I know the answer to that question. When your family, your company, and all the people in your orbit have become the targets of an unfounded politically motivated Witch Hunt supported by lawyers, prosecutors and the Fake News Media, you have no choice."

I agree, though wouldn't have said it exactly that way. I would have people invoke the Fifth for any number of reasons. Because they've committed a crime. Or because they've done something short of a crime that they don't want to own up to. Or because they don't trust their interrogator or the public at large not to exploit their nuanced but wholly innocent position. Because they'd rather appear guilty than open some other can of worms.

Because there's no way around looking guilty.

The Fifth Amendment provides us with protection against self-incrimination by allowing us at any time and for any reason to refuse to answer questions of police or any other investigatory body without forfeiting the presumption of innocence.

At least that's how it should work. As a practical matter, the presumption of innocence is a pretty thought. Most of us secretly believe we have the super-power to judge someone's character based on the way they look, dress or speak. Too many of us factor ethnicity, sexual orientation and someone's age into that equation. We should all strive to do better, to allow the evidence to overtake our preconceptions, but we can't pretend we don't think our own thoughts.

If you see someone in court in an orange jumpsuit, you might assume they've done something wrong. (I'm more suspicious of people who show up in court in sweat clothes, because I assume that's their choice. They could have worn church clothes if they'd wanted. Heck, maybe they did wear their church clothes. Now they've really forfeited any presumption of decency.)

While I believe most people who wind up on juries will make an honest effort not to hold taking the Fifth against a witness, I also believe in gravity. Those honest efforts mostly fail. We all think taking the Fifth is shady; like Trump said, it's what mobsters do.

In the real world, this is balanced by the fact that most people understand when they invoke their right to self-incrimination they are, in the eyes of the general population, admitting wrongdoing.

So before they "take the Fifth," they consider the ramifications. Is it better to be perceived as guilty, or to risk prosecution? If the answers you can provide are so important to the prosecutors, they can compel you to testify by granting you immunity.

That's one reason I thought it might be a good idea for Joe Biden to offer Trump a pardon after he took office. Accepting the pardon would have saved Trump from some legal difficulty (and enraged some of the Democratic base) but it would have required Trump to acknowledge wrongdoing and forced him--under pain of perjury or contempt charges--to provide investigators with answers, which seems more important than prosecuting the old carny.

But nobody listens to me.

It's a good idea to say as little as possible to people who might arrest, indict, fine or send you to jail when they are about their serious business. "I don't know" is a really good answer when it's the truth. (And when you think about it, what do any of us really know anyway?)

Our courts are set up as adversarial contests, not as chambers designed to determine absolute truth. So unless you're writing them a check, the attorney asking you questions is not your friend.

I've testified in a couple of murder trials about trivial matters (a better lawyer could have quashed the subpoena, just sayin'). I've never been as anxious as I was for those few minutes on the stand, even though all I had to testify to was that I had indeed written what was published under my byline. And I've never been as relieved as when the prosecuting attorney sneered at me and told the judge "no questions, your honor." For a holy second I felt guilty and was convinced I'd be leaving there in leg irons. Bad things happen in courts.

At least no one can accuse the former president of maintaining a foolish consistency; Trump has worked through the algebra of self-incrimination several times over the years and come out with different answers. According to Wayne Barrett's 2016 book "Trump: The Greatest Show on Earth," Trump took the Fifth 97 times while he was being deposed by his soon-to-be-ex-wife in their divorce case. (Mostly the questions he declined to answer were about his liaisons with other women.)

In 1998, on "Hardball with Chris Matthews," he said he wasn't sure that Bill Clinton should have admitted his affair (or whatever it was) with Monica Lewinsky. Trump said Clinton should "have just gone and taken the Fifth Amendment and said, 'Look, I don't get along with this man, [Ken] Starr. He's after me. He's a Republican, he's this, he's that'.... It's a terrible thing for a president to take the Fifth Amendment, but he probably should have done it."

But in 2014, when Bill Cosby was facing dozens of sexual assault accusations, Trump took to Twitter to advise him: "If you are innocent, do not remain silent. You look guilty as hell!"

Once again, I think Trump is generally right; there are lots of times when it's smart to take the Fifth. But anytime you do, you look guilty as hell.

pmartin@adgnewsroom.com


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