‘Taking the Fifth’ in Jersey and history

I bet that Chris Christie’s take-the-Fifth troika – Bridget Anne Kelly, Bill Stepien, and David Wildstein – never imagined that one day they would follow in the footsteps of famed lip-zippers like Oliver North, Zero Mostel, and Mark McGwire.

But hey, the Fifth Amendment (no man “shall be compelled…to be a witness against himself”) applies to all Americans, including the herselfs. As civil liberties expert Victor Navasky told me during the Iran-Contra scandal, when North and other Reagan minions were taking the Fifth, “The idea is to uphold the dignity of the individual. Protections like that make society a better place to live. You just have to look at the way it’s used on a case by case basis.”

Case by case…ah, there’s the rub. If we like the lip-zipper and dislike the investigator, we tend to believe that taking the Fifth is an act of defiant courage. But if we believe that the investigation is merited, we tend to believe that the lip-zipper is a bad actor who’s trying to hide something. Back in the 1950s, in fact, President Eisenhower – clearly miffed that various members of the Teamsters Union were clamming up during congressional hearings – said at a press conference: “If a man has to go to the Fifth Amendment, there must be something he doesn’t want to tell.”

Ike essentially said that taking the Fifth inherently taints the taker. That’s probably how many of us feel about Christie’s Jersey troika. (Wildstein has taken the Fifth in a legislative hearing, but he might still serve up documents; Kelly’s lawyer says no dice.) We think those people are staying mum because they’re guilty of something, and hiding important stuff that we need to know.

And the optics are indeed bad. Christie has repeatedly pledged his full cooperation in the various scandal probes, but when ex-aides refuse to cooperate, it looks like a coverup.

Christie addressed this issue on the radio Monday night: “They have the constitutional right, like everybody else, and they have the right to exercise (it).” He’s correct on the civil liberties front, but this is a case where taking the Fifth is a political loser. Most people want to know what happened on the bridge – and whether Christie politicized the dispersal of Sandy funds in Hoboken and elsewhere. In other words, most people believe that the criminal and legislative probes are warranted.

So for now, or until the U.S. attorney gives them immunity, Christie’s ex-aides and Christie himself will be tainted in the court of public opinion – just like those Teamsters were during the ’50s hearings on union corruption. (The witnesses routinely looked to boss Jimmy Hoffa, and Hoffa, sitting among the spectators, would waggle five fingers and yell, “Take Five!” Not to be confused with the famous Dave Brubeck jazz number, Take Five.)

The minority view, of course, is that Christie is plagued by witch-hunt investigators, and that taking the Fifth is an act of courageous defiance. So it all depends on who is perceived to be wearing the white hat. Those of us who lament the red-baiting probes of the Joe McCarthy era tend to laud the subpoenaed witnesses who took the Fifth.

You gotta love Zero Mostel, the actor and comic, who refused to even name the studio that employed him. He said, “18th Century Fox.” The congressional committee said, “Do you want that statement to stand?” He replied, “Make it 19th Century Fox.” And you gotta love actor Elliot Sullivan, who took the Fifth after he was subpoenaed because of a comedy sketch he’d written: Two shady characters were trying to sell copies of the Bill of the Rights to each other; once the sales were completed, each revealed himself to be an FBI agent and arrested the other. The congressmen felt that the $1 sale price was a traitorous insult to the Constitution.

But if you think those commie probes were warranted, then Mostel et al look bad for clamming up. As did Mark McGwire during the steroid hearings. As did the top two officers of Solyndra, the bankrupt solar power company. As did Republican lobbyist Jack Abramoff, who later went to jail. As did Enron’s Kenneth Lay, who later killed himself. As did Lois Lerner of the IRS, who retired last autumn. As did Ollie North, who wound up with a radio show. Like it or not, that’s the Constitution we have.

As for the Christie troika, some of them will ultimately talk to a grand jury. Maybe in the spring or summer. But until they get immunity from prosecution, the taint of the Fifth will continue to bleed Christie politically. Because, on the perception front, they’ll look little better than mobster Frank Costello, who took the Fifth and told congressional investigators, “I want to testify truthfully, and my mind don’t function.”

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Also, this is why it’s a waste of time to read or feed the trolls.

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