For criminal defense lawyers, the question was why it took so long for him to file the declaration.
Michael D. Cohen, President Trump’s longtime personal lawyer, will invoke his Fifth Amendment right in a lawsuit filed against the president by Stephanie Clifford, the pornographic film star better known as Stormy Daniels.
On the one hand, there was little question but that his exercising a fundamental right embodies in the Fifth Amendment to the United States Constitution would bring about a storm of stupid from those who despised his beloved boss, and by extension, him. But on the other hand, there was no serious question that it had to be done.
Mr. Cohen cited the Manhattan investigation in his filing on Wednesday, saying that, if called as a witness in Ms. Clifford’s lawsuit, “I will assert my 5th Amendment rights in connection with all proceedings in this case due to the ongoing criminal investigation by the F.B.I. and U.S. Attorney for the Southern District of New York.”
Given that he was the target of a federal criminal investigation, it would have been crazy to subject himself to a deposition. Whatever he said would be used against him. To the uninitiated, it doesn’t matter if he testified under oath that he did it or didn’t do it. Either way, it gets used to his detriment by the feds. The right not be made a witness against oneself is there to prevent this from happening.
Naturally, this was immediately twisted into “proof” that Cohen was a criminal.
And a new lawyer-darling of the left couldn’t resist.
Michael Avenatti, Clifford’s outspoken attorney, called the development “stunning” on Twitter.
“Never before in our nation’s history has the attorney for the sitting President invoked the 5th [Amendment] in connection with issues surrounding the President,” Avenatti tweeted. “It is [especially] stunning seeing as [Michael Cohen] served as the ‘fixer’ for Mr. Trump for over 10 yrs.#basta”
Because this raises some hoary comparisons, even Salon was forced to spin harder than normal.
Given that the Fifth Amendment promises the right against “forced self-incrimination” (as Cornell Law scholars write), invoking it is often perceived by the public as an admission that there is something to hide. In 1990, after separating from first wife Ivana Trump, Trump himself invoked the Fifth to avoid answering a question during his divorce deposition.
Hypocritically, when a Hillary Clinton aide invoked the Fifth, Trump took the chance to lampoon them.
“The mob takes the Fifth,” Trump said, according to AP News. “If you’re innocent, why are you taking the Fifth Amendment?”
While Schadenfreude and hypocrisy are always fun games at parties, that Trump has a mind-numbingly stupid thing to say about everything that invariably comes back to bite him in the butt does not turn him into a legal scholar. He deserved to be hoisted in his own petard, but his legal analysis is no better here than it’s ever been.
As campus co-eds have tried to turn due process into a curse, and SJWs call free speech an alt-right dog whistle, now the Fifth Amendment right is on the chopping block. After all, getting Michael Cohen, and through him Darth Cheeto, is more important to the #Resistance than anything ever. If it costs us our constitutional rights, they’re willing to pay. That’s a lot of hate.
When we argue that the rigor of our constitutional rights is tested by whether we provide them to the most hated among us, it’s usually some particularly nefarious criminal, a mass murderer for example. And yet, the righteous can see beyond the horrors of this murderer’s crimes to stand firm for our constitutional rights. We take some pride in rising about the outrage of the crime, knowing that we are better, more principled, than the petty, vindictive mob.
But this time?
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The invocation of the right not to be “compelled in any criminal case to be a witness against himself” is at grave risk. You know it’s absurdly simplistic to say, as Trump did, “If you’re innocent, why are you taking the Fifth Amendment?” It’s just as absurdly wrong to say that Cohen’s exercise of the right is “basically admitting that he’s a criminal.” It’s false. It’s wrong. It’s dangerous.
At a civil trial, the invocation of the Fifth will give rise to an adverse inference instruction to the jury. At this point, Cohen is seeking a stay of the Stormy Daniels action so as not to put him in an untenable position to defend himself in the Southern District of New York. Such stays are commonly granted, though whether that will be the case here is unclear since nothing is common with regard to Trump.
In the event that Cohen is prosecuted, and the Daniels case is stayed, then the outcome of the former will guide what happens in the latter. In other word, if Cohen is prosecuted, he will either be convicted or acquitted, but we will ultimately get a result, and that result will ultimately bear out in his testimony or posture in the Daniels case.
But in the interim, the forces of the unduly passionate, in their zeal to do as much harm as possible to Trump by whatever means present themselves, want to seize yet another constitutional right and turn its invocation into condemnation. I have no clue whether Michael Cohen committed a crime, but there is absolutely no question that his exercise of his Fifth Amendment rights proves nothing of the sort. Anyone willing to destroy a constitutional right to “get” their most hated enemy is scum.
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