I’m old enough to remember when Donald Trump believed that invoking the Fifth Amendment’s right to remain silent was the same as confessing guilt. But that was just something that came out of his mouth in 2016. He’s thinking differently this week, now that Michael Flynn is the one who’s taking the Fifth.
Yup, we learned yesterday that one of the central figures in Kremlingate is stonewalling a Senate subpoena in order to avoid self-incrimination. Flynn is entitled to exercise that right because the Fifth Amendment says that no man “shall be compelled … to be a witness against himself,” a right bestowed on all Americans, including the herselfs. It has been frequently invoked over the years — by Iran-Contra’s Oliver North, baseball’s Mark McGwire, Hollywood’s Zero Mostel, and thousands more.
When word got out that Flynn was taking the Fifth -—he’s been targeted by the FBI counterintelligence probe, a separate federal probe in Virginia, as well as several congressional investigations — I couldn’t help but notice Trump’s thunderous silence. Not a word of disapproval emenated from overseas, or from his spokespeople here at home.
No surprise there. They’re glad that Flynn is zipping his lip, because it comports with the game plan. Snuffing the Trump-Russia scandal is their top priority — as evidenced anew by the revelation that Trump tried, back in March, to get the Director of National Intelligence and the National Security Agency chief to publicly undercut James Comey’s FBI probe. As a former senior intelligence official recalled, “The problem wasn’t so much asking them to issue statements, it was asking them to issue false statements about an ongoing investigation.” (Add this material to the obstruction-of-justice charge.)
Anyway, it’s noteworthy that Team Trump suddenly thinks it’s awesome to take the Fifth — because that’s precisely the reverse of its 2016 ‘tude.
Last September, when three of Hillary Clinton’s IT specialists took the Fifth during a congressional probe of her private server, Trump railed on the stump: “So there are five of them taking the Fifth Amendment, like you see on the mob, right? The mob takes th Fifth Amendment. If you’re innocent, why are you taking the Fifth Amendment?” (Just to be consistent, he should ask Flynn the same thing.)
Also last September, Kellyanne Conwaty was equally incensed about the decision to take the Fifth. She called Hillary’s people “a basket of liars.” Clearly it all depends on whose team is taking the Fifth, because back in 2013, when IRS executive Lois Lerner took the Fifth in a GOP congressional probe of the Obama administration, Sean Spicer, in his capacity as a party spinner, tweeted: “Why do u take the 5th if you have done nothing wrong and have nothing to hide?”
OK, sometimes witnesses do have stuff to hide. Mobsters have indeed taken the Fifth, most notably ’50s kingpin Frank Costello, who famously told congressional investigators, “I want to testify truthfully, and my mind don’t function.” But scores of actors like Zero Mostel took the Fifth because they were being persecuted by unhinged congressional commie-hunters during the ’50s Red Scare. (Mostel refused to even name the studio he worked for. He said, “18th Century Fox.” The congressional panel said, “Do you want that statement to stand?” He replied, “Make it 19th Century Fox.”)
Like it or not, the Fifth Amendment’s protection is extended to all, and there was no concerted outcry from Republicans when Oliver North took the Fifth during Reagan’s Iran-Contra scandal, or when GOP super-lobbyist Jack Abramoff took the Fifth in 2005 during a K Street scandal. If you’re on the partisan team, then taking the Fifth is awesome. Just like it is now, because the last thing Trump wants is to see Flynn in a public forum, taking questions about why the Russians boasted among themselves, all last year, about how they could use him to sway Trump.
And if you’re Trump, seeking to protect only Trump, then taking the Fifth is doubly awesome. Back in 1990, when he was in divorce proceedings and seeking to disengage from Marla Maples, he was asked roughly 100 questions about marriage infidelity. He responded by taking the Fifth.