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Trump Should Take the Fifth


Obviously frustrated by President Trump’s refusal to comply with Special Counsel (and former FBI Director) Robert Mueller’s conditions for an interrogation of Trump, Mueller is now threatening to subpoena Trump to testify before a federal grand jury. A subpoena is a formal judicial order requiring a person to appear before the grand jury, without his lawyer present, to answer questions posed to him by a prosecutor.

For his part, Trump has signaled that he will appeal the subpoena all the way to the U.S. Supreme Court. The ground for his appeal would most likely be “executive privilege,” a ground that the federal judiciary would almost certainly reject.

However, Trump has another way to avoid testifying, a way that undoubtedly would cause the U.S. mainstream press, as well as Trump critics, to go absolutely ballistic. Trump should refuse to testify before the grand jury on the basis of the Fifth Amendment to the U.S. Constitution, which states in part as follows: “No person shall … be compelled in any criminal case to be a witness against himself.”

Yes, we can already hear the mainstream press and Trump critics braying, “Oh, by taking the Fifth Amendment, Trump is admitting he’s guilty!” Or “If he has nothing to hide, he shouldn’t be hiding behind the Fifth Amendment!”

Actually though, this would provide Trump and his legal team an excellent opportunity to school the U.S mainstream press and the American people on why our American ancestors successfully fought to have that particular provision included in the Fifth Amendment.

As I pointed out in my article, “Trump Would Be Stupid to Talk to Mueller,” Trump is under no obligation to assist Mueller with his investigation of Trump on so-called collusion charges relating to Russia. By taking on the job of Special Counsel, Mueller assumed the risk of not being able to come up with sufficient evidence to charge and convict Trump of illegally “colluding” with Russia.

But Mueller and the mainstream press are obviously getting nervous and desperate. It’s now been 15 months and millions of dollars in U.S. taxpayer money, and Mueller has still not charged Trump with anything. Instead, he’s currently spending his time and U.S taxpayer money prosecuting former Trump campaign official Paul Manafort on some income-tax charges and bank-fraud charges.

What do those charges have to do with so-called collusion-with-Russia charges? Nothing. So, why is Mueller spending his time and taxpayer money on prosecuting Manafort? The most probable reason is that he’s hoping that he will get a conviction, which would then enable him to offer Manafort a sweetheart deal to testify against Trump on some charge, any charge, which would enable Mueller to hopefully save face.

In the meantime, Mueller desperately wants to interview Trump, which might provide Mueller a chance to get Trump on a false statement or perjury charge. The idea would be to get Trump to talk and talk and talk. And then Mueller’s team would scour all that talk for any sign of a false statement. If they find just one, they would exclaim, “Eureka! We got him! We found a false statement!” And then they would charge Trump with lying, even if they never charge him with illegally “colluding” with Russia.

That’s why it would be stupid for Trump to talk to Muller and also stupid for him to testify before the grand jury (especially since he wouldn’t be permitted to have his lawyer with him in the grand jury room).

Keep in mind that the Bill of Rights was expressly designed to protect people from the federal government. Our ancestors knew that federal officials would sometimes go after people who they believed were guilty but were unable to convict for lack of evidence. Our ancestors knew that without the Bill of Rights, federal officials would force people to provide the evidence to convict themselves.

Why did our ancestors believe that federal officials would do this type of thing? Because that’s what British officials did to British citizens. They would force them, oftentimes through torture, to provide the evidence that would be used to convict them. Our ancestors wanted nothing to do with that type of judicial system. (Keep in mind that before the American revolution, our ancestors were British citizens and, therefore, were well-versed in the behavior of British officials.)

Thus, the Fifth Amendment. Our ancestors were saying: If you’re going to prosecute and convict someone, then you’re going to have to come up with the evidence that convinces a jury of guilt beyond a reasonable doubt. We are going to prohibit you, through the Fifth Amendment, from forcing a person to provide the evidence that helps you convict him.

In modern times, the U.S. mainstream press and, ironically, the conservative movement have mocked and ridiculed our ancestors for enacting the Fifth Amendment. They insinuate that anyone who relies on the Fifth Amendment must be guilty. They clearly view the Fifth Amendment as nothing more than a “technicality,” one that is intended to let guilty people go free. They would clearly be happier if the Fifth Amendment had never been enacted and if it were repealed today.

But our ancestors were right to include the Fifth Amendment in the Bill of Rights, and it would be a terrible mistake to repeal it. It was designed to protect everyone, including the innocent, from overzealous prosecutors and investigators who become desperate because they are unable to come up with the evidence to convict the person they are convinced is guilty of something.

President Trump would be doing everyone a favor by taking the Fifth and using it as a teaching moment to explain the meaning, purpose, and history of the Fifth Amendment.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.