How would this conversation go over in your household:
You: "Junior, it looks like a Smart Bomb has taken out the front end of the Suburban you and your buddies took to Eight Legged Freaks last night. Anything you care to share about what happened?"
Junior: "Believe me, I really want to, Dad, but on the advice of counsel, I respectfully must decline to answer that question based on the protection afforded me under the Fifth Amendment."
No way, right? No way a parent is going to accept a no comment from that kid. Fact is, most of us expect - or harbor the hope anyway - that our kids will spill the beans on misbehavior before we find out on our own. We believe in confession, in fessing up. We admire the mensch, the stand-up guy. You did it, you own up to it, that's our creed.
And that's why we're so bothered during what is shaping up as the Year of the Fifth. After a long interval, people again seem to be flocking to Washington in order to invoke their right against self-incrimination. Every other week, we turn on our televisions to the spectacle of crisp white men in crisp white shirts somberly regretting their inability to tell congressmen why they can't explain how they misplaced hundreds of millions of dollars and spread misery to countless employees and stockholders while getting rich themselves.
Some manage to invoke the Fifth with admirable chutzpah, implying that keeping their mouths shut actually demonstrates moral fortitude rather than suggesting its opposite. So, for instance, Bernard Ebbers, WorldCom's former CEO, doing his best Nathan Hale impression, confides to a congressional committee, "I would like, more than you know, to answer the questions that you and your colleagues have about WorldCom."
But, alas, he says, he can't.
If only it were up to them. Often, these executives suggest that they want nothing more than to be able to clue us in on what went down. It's their lawyers who won't let them. They actually say that, as though we're too stupid to know on whose behalf the lawyers are working, as if we don't understand that the lawyers want them to shut up so they don't end up in prison.
It's easy to hate these - in commentator Daniel Schorr's phrase - "Fifth Amendment capitalists." It's easy to see them as self-centered, arrogant and cowardly, loyal to nothing but their own skins.
So, go ahead and hate them. But don't hate the Fifth.
We need it
Far from a cop-out or a corruption of our better nature, the Fifth Amendment demonstrates both our self-knowledge and our self-discipline. We have it because we know we need it; it represents our maturity, not our weakness. As Erwin Griswold, a one-time Harvard Law School dean, said, "[T]he privilege against self-incrimination is one of the great landmarks in man's struggle to make himself civilized." He made the comment in 1955, at the end of the McCarthy era, when great forces were marshaling themselves in favor of repealing the privilege.
Luckily, they failed.
Like many of our constitutional amendments, the Fifth is an outgrowth of the great suspicion with which the Founders regarded government. To them, government was something we needed protection from. We didn't want the government telling us what to believe, what we could say and who we could hang out with. We didn't want the government storming into our homes whenever it chose to do so. And, as the Fifth Amendment shows, we didn't want the government coercing confessions from us.
By the end of the 18th century, Western legal history was replete with examples of forced confession. From the Inquisition to the Star Chamber to the Salem witch trials, government and ecclesiastical investigators had long proven themselves adept at getting what they needed from the accused to make their cases. The abuses were so evident that in England, the value of confessions came to be viewed with widespread skepticism, enough so that English common law came to recognize the right against self-incrimination. The authors of the U.S. Constitution merely transplanted that protection here to prevent coerced confession and compulsory self-incrimination.
In our system of law, we make the government prove its case against the accused and do not allow it to, as Dan Moriarty, a professor of criminal law at Albany Law School, puts it, "conscript the defendant into the army that's opposing him."
"History has shown that if you let the government do that, they will be abusive. They will accuse everybody and make everyone accuse everybody else."
The right, of course, does benefit the guilty, perhaps more often than the innocent. "It is a right that protects mostly the guilty," says Albert Alshuler, a professor of law at the University of Chicago. "People want to say the opposite and conjure up instances where the innocent were protected. You shouldn't take the invocation of the Fifth as any kind of conclusive proof of guilt, but the fact is that mostly people take the Fifth when they have something to hide."
Most of us seem to agree with that, a fact that is not lost on congressional panels. Rarely does anyone plead the Fifth and emerge with reputation intact. Posterity may now honor those who refused to sacrifice friends and colleagues during the Red Scare in the late 1940s and '50s, but at the time, pleading the Fifth ensured the destruction of their careers. CBS, the New York Times, Harvard University and the New York public school system all fired employees for invoking the Fifth.
The Communist witch-hunters knew exactly what they were doing when they repeatedly hurled questions at the witness before them. As often as the questions came, the witness would just as often have to invoke constitutional protection, knowing exactly how awful that looked.
"To the extent that these long, serial questions were asked for the purpose of shaming and embarrassing the witnesses, it took on the aspect of a show trial, and that, to me, is not what the process is supposed to be about," says Victor Navasky, publisher of The Nation magazine and author of Naming Names, a book about the Hollywood blacklist.
It would not be the last time politicians would turn the Fifth Amendment into a weapon of humiliation in a public hearing.
"When Bobby Kennedy would ask the Teamsters these questions, that was, it seemed to me, an abuse of power," Navasky says. "To ask 100 questions when you knew the answer was going to be to invoke the Fifth, that's not appropriate for a democratic society to uphold the rule of law. That doesn't mean I have sympathy for Teamster thugs, it means it's the wrong way to go after Teamster thugs."
After the suicide of a medical researcher called before the House Un-American Activities Committee in 1957, congressional committees often allowed those they knew would invoke the Fifth to avoid doing so at public hearings. Sam Dash, chief counsel to the Senate Watergate Committee, recently told The Wall Street Journal that the committee believed that forcing people to invoke their privilege in public to shame them was "an abuse of process."
Impact of appearances
Although he agrees abuses have occurred, Charles Tiefer, a former deputy counsel to the House of Representatives and now a law professor at the University of Baltimore, takes a somewhat contrary view. The Fifth Amendment protects the accused from giving testimony that could be used against oneself in a criminal matter. It doesn't mean that invoking it will not hurt that person in a civil or a legislative matter. And the Fifth Amendment does not guarantee protection of one's good name.
Tiefer also believes there's a benefit to a public moment of truth. Recalling that Jeffrey Skilling, the former president of Enron, did not exercise the right when he appeared before Congress earlier this year, Tiefer said, "It's entirely possible that if Skilling had been offered a chance to take the Fifth in a letter to the committee, he would not have appeared and ultimately testified." It's possible, Tiefer said, that Skilling only gave testimony because he didn't want to face the embarrassment of taking the Fifth as did some of his former Enron colleagues.
Every time the Fifth Amendment is invoked, we are reminded of its cost. Sometimes, the only person who can enlighten us about what happened and why is the one person entitled not to tell us. "Maybe with the Fifth Amendment, you're buying something worth having, but the price is high," says Moriarty, "the price is the suppression of truth."
To Moriarty, it is worth it. "On the whole, making the government prove its case, even if it means they sometimes don't get the bad guy, makes all of us safer."
Maybe most of us are not so high-minded that we can really follow the instruction judges often give juries: not to take the silence of defendants as imputing their guilt. We'll continue to feel provoked when we see the likes of Kenneth Lay and Bernard Ebbers sanctimoniously invoke the Fifth.
But maybe we should also feel grateful.