Following a raid on his office by the feds and the accompanying revelation of a federal investigation, Trump attorney Michael Cohen announced that he will “plead the fifth” in the Stormy Daniels civil case. To many anti-Trumpers-turned-amateur-lawyers, this means one thing: Cohen is guilty of something (and impliedly, so is Trump). After all, pleading the fifth is the same thing as admitting guilt, according to comment sections and Twitter feeds across the internet.
“The fifth”, of course, means the right not to “incriminate” one’s self. It is derived from the fifth amendment of the Bill of Rights, which states in part that no person “shall be compelled in any criminal prosecution to be a witness against himself.” The fifth amendment is the basis for the defendant’s right not to testify in his own trial. But it can also be invoked by a person who is testifying under oath in some other proceeding, if in doing so his or her answers may be incriminating in the criminal matter.
To a lay person, this is often inferred as guilt. This inference is actually prohibited under the law. When the defendant in a criminal trial declines to testify in his or her own defense, the judge will instruct the jury that they may not, under any circumstances, interpret the defendant’s silence as evidence of guilt. However, most criminal defense attorneys will tell you that juries, being human, do not always follow this instruction. Nevertheless, most of the time the danger to the defendant of taking the stand outweighs the worry that the jury will unfairly infer guilt from silence.
Cohen, being a lawyer, undoubtedly understands this. The Stormy Daniels case is a civil suit, not a criminal matter. However, if Cohen believes that his answers to questions in the civil case could possibly be used against him in a criminal case, he may properly invoke the fifth amendment. We don’t know for certain that the DOJ investigation involves Stormy Daniels, but we can reasonably speculate that the lines intersect somewhere. It makes sense that answers given under oath in the civil matter would be of interest to federal investigators.
But, insist the lay-lawyers, if he hasn’t done anything wrong, why would that matter?
People unfamiliar with the justice system underestimate the ability of the government to use a person’s own words against them. There is much Cohen could say that would “incriminate” him without actually admitting to a crime. Here is a non-Cohen scenario to illustrate the point:
Let’s say on May 1st at 2 pm, you are down on Main Street. Right as you are passing a bank, two things happen: 1) a person who looks like you runs out of the bank, having just committed a robbery; and 2) you witness a car accident. You go on home. One of the drivers involved finds out you were a witness to the accident, and subpoenas you to testify in the resulting care wreck lawsuit.
While all this is going on, someone IDs you as the bank robber and you are charged with the crime. You have a good lawyer who tells you to keep your mouth shut, and you have not told police anything, including your whereabouts on May 1st. You are out on bail awaiting your criminal trial when the car wreck court date comes up.
You go under oath for the car wreck case and testify that on May 1st, around 2 pm, you were down by the bank on Main Street. You have now given a sworn statement that a prosecutor can use against you in your criminal trial. Your admission of your presence near the bank on Main Street at the relevant date and time has provided a very important piece of the puzzle in building the prosecution’s case. You have “incriminated” yourself without having admitted any wrongdoing.
This is an odd hypothetical, but illustrates how a seemingly innocuous bit of testimony can be anything but. In this situation, you could have properly and usefully invoked your fifth amendment right, despite your innocence.
Beyond this type of scenario, one should never underestimate the ability of the authorities to bend and twist one’s words to suit their purposes. Nor should one discount the ease with which one may find himself or herself charged with lying to the FBI, should mis-remembered details recounted in one place conflict with details related elsewhere. Lawyers know this. It is reasonable to assume that Cohen knows this.
It is entirely possible that Cohen has something to hide; it is entirely possible that he doesn’t. Undoubtedly, he is savvy enough to know that it doesn’t matter.