Trump should take the Fifth

Trump should take the Fifth
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Any client — sophisticated or not, public figure or otherwise — who was told by his lawyer to take the Fifth Amendment has worried deep into the night that the prosecutor and everyone else will conclude that he is guilty, or has something bad to hide. After all, why else would he “take the Fifth”?  But, frankly, any client who doesn’t take his lawyer’s advice on this issue is sadly mistaken: the jails are full of individuals who insisted on overruling their lawyers and resultantly were convicted of perjury or making false statements to the FBI (an independent offense) — and nothing else. Meaning, if they had listened to their lawyer’s advice and taken the Fifth in the first place, they would be off the hook, free as a bird.

On Feb. 5, The New York Times reported that most of President TrumpDonald John TrumpFacebook releases audit on conservative bias claims Harry Reid: 'Decriminalizing border crossings is not something that should be at the top of the list' Recessions happen when presidents overlook key problems MORE’s coterie of lawyers have advised him to resist Special Counsel Robert MuellerRobert (Bob) Swan MuellerMueller report fades from political conversation Trump calls for probe of Obama book deal Democrats express private disappointment with Mueller testimony MORE’s request for a voluntary interview, and presumably resist testifying pursuant to the anticipated grand jury subpoena that will follow such refusal.

Now, maybe, Trump and his lawyers are simply negotiating with Mueller through the press — by leaking attorneys’ advice in an effort to persuade Mueller to limit the scope of questioning, the length of the interview or other important terms. Maybe even, by publicly threatening (read, leaking) that Trump will resist any interview or grand jury appearance whatsoever, they’re forcing Mueller to weigh the practicality of engaging in what would be a long and drawn out Supreme Court battle if he fails to agree to ground rules the president is sure to impose. Something like a short and tailored interview that, by agreement, would not be followed by grand jury testimony.  


But, let’s assume the opposite. Let’s assume Trump’s lawyers are simply and understandably afraid that Trump can’t help himself if he agrees to an interview or testimony; or that Trump does have something to hide; or that Trump’s penchant for bombast and overstatement will seriously damage him when he is questioned by able prosecutors who have read everything on the subject and spoken to every relevant witness, something that Trump clearly will not have done.  

Prosecutors understand the legitimacy of a target invoking the Fifth Amendment — and let’s be clear, Trump, whether the special counsel publicly acknowledges it or not, is the target. It’s simply the acceptable way of the world in criminal investigations. Fortunately, Sen. Joe McCarthy isn’t around anymore — when his witnesses took the Fifth during House Un-American Activities Committee hearings, they were publicly labeled “Fifth Amendment Communist.”

The principal truth is that Trump simply can’t and won’t be able to help himself in an interview.  Not because he has been railing against the Fake News, Fake FBI, Fake Special Counsel, Fake everything and, as a result, Mueller will be out to get him. Rather, it’s because Mueller undoubtedly has credible, memorialized, tape-recorded and/or corroborated information.   

For example, and purely hypothetically, what if Mueller has more than one witness who was on Air Force One who says that Trump himself authored a false narrative of that infamous meeting at Trump Tower among Donald Jr., Paul ManafortPaul John ManafortTrial of ex-Obama White House counsel suddenly postponed Top Mueller probe prosecutor to join Georgetown Law as lecturer DOJ releases notes from official Bruce Ohr's Russia probe interviews MORE and a Russian lawyer (with Jared KushnerJared Corey KushnerPresident tweets 'few work harder' than Ivanka, Jared PETA billboard in Baltimore calls Kushner a 'rich pest' Top immigration aide experienced 'jolt of electricity to my soul' when Trump announced campaign MORE making a brief appearance). If that were the case, Trump’s denial to Mueller during an interview or before a grand jury won’t change Mueller’s mind.  It will, of course, alter Mueller’s report to the Congress and, in the process, allow Trump’s base to say: “Fake news.” But, and again this is all hypothetical, it likely won’t change the conclusion in the Mueller report.

Could Trump assert that a president has a constitutional prerogative to refuse to testify? Maybe, but that only gets him a fight to the Supreme Court that will take a long time — one he may very well lose. Isn’t it better — cleaner, if you will — if he asserts his Fifth Amendment right immediately and let everyone think what they want? And since he sincerely wants to bring the investigation to an end, once he takes the Fifth, there’s likely nothing further Mueller can do to gain his testimony.  

So, what is Trump’s downside in taking the Fifth? Losing faith with his base? They are no worry — they’re likely with him, warts and all, until the end of time. They will see his taking the Fifth Amendment as his constitutional prerogative, his standing up to an incompetent, or perhaps even rejecting a “treasonous,” prosecutor.  And, by the way, the Supreme Court in that case would side with Trump if Mueller had the temerity to litigate it — the president has the right to invoke his Fifth Amendment right just like everyone else.  

Will there be some — probably many — people who will say that taking the Fifth is a criminal’s way to slither away from admitting guilt? For sure. But this is a president who, despite his advisors’ advice, has managed to weather many crises — even when he has changed his stated plans or course of action in public appearance after public appearance. He can tell the public one thing one day, another thing the next, and carry through with none of it. He can call the investigation a witch hunt to which he refuses to submit as a matter of principle. Trump, after all, has defied the odds and won over enough members of the public many times during his campaign and his presidency with just this kind of rhetoric.    

Notwithstanding his successes in the past, though, dealing with a special prosecutor is different; dealing with a grand jury is different. The simple fact is that Trump can’t fly from statement to statement when sitting across from the prosecutor, whether in an informal interview or in a grand jury chamber after he has sworn on the Bible.

Perhaps the clincher is that if forced to testify before a grand jury, Trump would face empowered prosecutors without his lawyers by his side — a scenario clearly fraught with peril for him.  Maybe the president should, therefore, take the advice they’re giving him now — to not speak to the special prosecutor at all. Put simply, he should take the simple advice contained in the title to this article if it ever gets to that, and it probably will.  

Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. Cohen is an adjunct professor at Fordham Law School. He regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publicationsand is the author of "Broken Scales: Reflections on Injustice."