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Best Advice to Clinton: Take the 5th Amendment

Gerald F. Uelmen is a professor at the Santa Clara University School of Law

If one were to ask any criminal defense lawyer in America what advice he now would give Bill Clinton if he were not president of the United States, one would receive a remarkably consistent response: “Take the 5th.” Any client testifying in a grand jury investigation of which he is the chief target who expects to be questioned in detail about an alleged sexual tryst and every conversation he has ever had about said tryst, would be crazy not to invoke the protection against self-incrimination provided by the 5th Amendment.

Why should the president receive different advice? Political advisors will warn Clinton that the public would be repulsed by the spectacle of a president “hiding behind” the 5th Amendment. They will tell the president that the invocation of the privilege against self-incrimination is tantamount to an admission of guilt.

But there is another way of looking at the venerable 5th Amendment. As Chief Justice Earl Warren saw it, the constitutional foundation underlying the 5th Amendment privilege “is the respect a government--state or federal--must accord to the dignity and integrity of its citizens.” Or as Harvard Law School Dean Erwin Griswold said, “the privilege against self-incrimination is one of the greatest landmarks in man’s struggle to make himself civilized.”

The 5th Amendment is simply the formal, legal means for a citizen to say to his tormentor, “Bug off. My explanation is none of your business. If you want to persecute me, get your evidence somewhere other than from my own lips.”

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In essence, that is precisely what Bill Clinton would love to say to Independent Counsel Kenneth Starr. That, and: “You are investigating matters that have absolutely nothing to do with my governmental responsibilities. Your only goal is to embarrass me to the point I can no longer function as president or trap me into giving testimony you can then challenge as perjury. I’m not going to help you.”

There is a concise, legal means to deliver exactly that message: Decline to answer on the grounds of the 5th Amendment.

If the American people agree, as apparently most do, that Starr’s investigation has no relevance to the governance of America, why should they be particularly repulsed by a presidential invocation of the privilege against self-incrimination? They weren’t repulsed by the invocation of executive privilege, attorney-client privilege or the newly minted Secret Service surveillance privilege. Those, too, are privileges that “hide” the truth. But there are some values we should regard as even more important than exposing the truth.

The problem is that, unlike other legal privileges, the 5th Amendment carries with it a negative connotation. We associate “taking the 5th” with gangsters and “Communist subversives.”

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Perhaps it’s time to see the 5th Amendment as an honorable alternative for any citizen, including a president, when faced with the traps being laid by a prosecutor looking for a trophy pelt. Regardless of what testimony the president might offer, Starr will vigorously pursue avenues toward a perjury charge or impeachment proceedings. If the president invokes his constitutional right to remain silent, Starr will just be left with an accusation of sexual impropriety and a charge of false testimony in a dismissed civil suit in which the testimony was irrelevant. Certainly not powerful material for an impeachment or even a criminal prosecution.

What about the judgment of history, which seems to be the judgment both Clinton and Starr care most about? Clinton’s place in history should be determined by his performance in office, and he rightly insists this whole tawdry affair has little to do with his performance in office. Taking the 5th Amendment will be completely consistent with that position.

Starr will certainly claim a victory of sorts. Compelling a president to claim the 5th Amendment isn’t an indictment or a conviction, but the zealots Starr seeks to please nonetheless will lick their lips in satisfaction--just the way they did when Sen. Joe McCarthy got witnesses to take the 5th.

One might even argue that the president owes it to the country to take the 5th Amendment. Those are precisely the terms in which Albert Einstein spoke when he counseled a friend in 1953 to “be prepared for the sacrifice of his personal welfare in the interest of the cultural welfare of his country .J.J. If enough people are ready to take this grave step, they will be successful. If not, then the intellectuals of this country deserve nothing better than the slavery which is intended for them.”

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He was talking about taking the 5th Amendment.


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