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Liquor, Soda, and the Fifth Amendment

Back in the day—prior to about 1980—liquor and soda could be bought in fifths. A fifth, so-called because it amounted to a fifth of a gallon, was also known as a “short quart” because it was a one-fifth short of a full quart.

When the law changed, and the short quart became standardized at its present 750 milliliters, the “fifth” lost another 7 milliliters.

So it is totally appropriate that so many wish the “Fifth” Amendment these days to offer Michael Flynn, as it has recently offered so many before him, something less than the full fizz of protection from the government that one might expect from a constitutional amendment whose one job is to do just that.

I’ve written about why the Fifth Amendment matters before, almost certainly more than once. Most criminal defense lawyers have either done that, or have spoken to clients, potential clients, and pretty much anyone else who will listen to it on a daily basis.

Why just this morning, Scott Greenfield, about whom I never talk, has written again about the Fifth. And Michael Flynn’s invocation of—with the attendant un-American uproar over—it in the last couple days or so.

Time was when there was an entire bundle of blawgers (the term was temporarily in vogue as a bastardized version of “law bloggers”) would have been on this like dead on a doornail. But as blawging has died out, the doornail has become a coffin nail; many of the old blawgs are long passed on and buried, lo, these many years. And the rest of us, with the exception of Scott, don’t seem to blog all that regularly.

Anywho, Scott’s post, in addressing the Flynn issue, harks back to Ken White of Popehat fame, and both take down the bullshit “if you have nothing to hide” justification for the abolition of the United States Constitution.

You take the Fifth because the government can’t be trusted. You take the Fifth because what the truth is, and what the government thinks the truth is, are two very different things. You take the Fifth because even if you didn’t do anything wrong your statements can be used as building blocks in dishonest, or malicious, or politically motivated prosecutions against you. You take the Fifth because if you answer questions truthfully the government may still decide you are lying and prosecute you for lying.

Let’s remember something: the Founders of the United States of America—by which I mean the People, and not just the dudes who came up with the idea for the founding documents—amended the Constitution to add the Bill of Rights because they understood what can happen when governments believe they have complete power over “their” citizens. They knew that protections against things like forced self-incrimination were necessary.

They were not about to take chances that Congress might devolve into, or institute, a new Star Chamber where, among other things:

One of the weapons of the Star Chamber was the ex officio oath where, because of their positions, individuals were forced to swear to answer truthfully all questions that might be asked. Faced by hostile questioning, this then gave them the “cruel trilemma” of having to incriminate themselves, face charges of perjury if they gave unsatisfactory answers to their accusers, or be held in contempt of court if they gave no answer.

Back then, as now, there were no doubt people who believed that “you have nothing to fear, unless you have something to hide.” But even back then, there were a few people with the intelligence, thoughtfulness, and experience to understand that it wasn’t just a matter of forcing bad guys to spill the goods.

This is why Scott notes,

[T]he exercise of this constitutional right [is not] proof of wrongdoing.


The invocation of Flynn’s Fifth Amendment rights doesn’t make him innocent. But it doesn’t make him guilty either.

How is this the case? Because Flynn might have done what he’s accused of, and might take the Fifth for that reason. (He also might have done what he’s accused of, but taken the Fifth for some other reason.) Flynn might be innocent, and still take the Fifth.

But why would someone invoke their right to remain silent, if not for the fact that they have something to hide? What Ken wrote is particularly applicable in Flynn’s particular case, where there is a toxic mix of hostile questions already buzzing around, and the current political climate with the anti-Trump undertow ready to grab anyone, or anything, that can give us a “do-over” on the Presidential election.

Yeah, it’s insane, but it’s there.

It doesn’t, however, take the toxic mix of hostile questions and politics to show why the Fifth Amendment might be a good and necessary thing to free people. This is what makes the outrage over Flynn’s invocation of the Fifth scary, and problematic.

In my 2009 article, “Help Yourself To A Conviction,” I wrote about another reason for invoking your Fifth Amendment right to remain silent, and it doesn’t require all the fizz of a short quart of soda to understand, nor does it require a malevolent government agent. I wrote the article because I have defended—sometimes successfully; sometimes unsuccessfully—far too many innocent people who had talked to the police, and whose words were later used against them.

Innocent people, as Scott has also frequently pointed out, live on the Good Guy Curve.

The normal, rational reactions of productive, law-abiding people serve them well in almost all endeavors. Until they find themselves in contact with a system and its protectors that view[] the normal, rational reactions of productive, law-abiding people a threat.

We who defend people, especially innocent people, understand that the normal and rational reactions of law-abiding people—those who you might say “have nothing to hide”—these people are often the ones in the most danger.

And, as I said, it doesn’t have to be because the government is evil (though it often is). It doesn’t have to be because cops are assholes (though they often are). It could be from various other problems, such as confirmation bias.

Confirmation bias can occur without any ill-will. A police officer investigating a crime “gets a hunch,” or jumps to a conclusion—without meaning to be a jerk, without meaning to be a bad guy. Then, everything he hears after that is heard in such a way that it reinforces his hunch.

If you look at the prior article I wrote on this issue—of whether or not to speak to the police—you’ll see that it does not require the officer to deliberately want to target the “suspect.” The officer is dispatched after a report of a missing wallet. The officer knows that the wallet was supposedly in the woman’s purse when she got knocked down by Sam. The officer has no reason to doubt this.

The officer then jumps to conclusions, by reasoning thusly:

  1. The wallet belonging to Doris Daudy was in the purse belonging to Doris Daudy.
  2. Doris Daudy was walking down the street when Sam knocked her to the ground.
  3. Sam “grabbed” the purse, along with some other items, ostensibly picking things up that had fallen when Doris was knocked to the ground.
  4. Sam claims to have returned “everything.”
  5. “Everything” would include the wallet (because it was in the purse).
  6. When Doris returned home, the wallet was missing.
  7. (Therefore) Sam must be lying.
  8. (Therefore) Sam must have stolen the wallet.

Now, obviously, there are a couple minor enthymemes in there that I didn’t explicate. I’ll leave that as a test for the reader. Equally obviously, anyone who read my 2009 post (“Help Yourself to a Conviction”) knows this is not what happened. First of all, the “facts” enumerated above were not related in the same fashion as they ended up being written up in the police report. Additionally, anyone reading that blog post knows that the wallet went down the storm drain.

But Sam talked to the police. Sam “admitted” that he knocked Doris Daudy down. Sam “admitted” that he “grabbed” the purse. Sam “claimed, or “said,” that he returned everything.

Doesn’t mean he did.

The officer, knowing what the officer already knows, plus what he’s already jumped to conclusions about, hears everything Sam said as an admission. It confirms his suspicion that Sam “must have” stolen the wallet. Not because the officer is an asshole (though he might be), but just because he can’t imagine what else might have happened to the wallet.

Had Sam been given access to counsel, he would almost certainly have “taken the Fifth” once the attorney sensed the way things were going. With rare exceptions, I don’t think any criminal defense attorney is ever going to advise his client to talk to the police. If that does happen, it’s going to be under very tightly controlled conditions, with some very specific rules.[1]

So this is something that can happen in a “normal” investigation of a suspected crime, without all the intensity, politics, and hoopla of what’s been happening with Michael Flynn.

I don’t see any attorney advising this in situations were the potential consequences are dire.[2] I definitely don’t see any attorney advising it in an environment where—regardless of innocence, or culpability—sharks are circling out of the mere anticipation that there will be blood. And it’s not like they’re all going to quietly swim away if there isn’t any. To use words ascribed to former FBI Director Comey in another context: “no good lawyer” is going to advise that.

No, I’m afraid I’m too American for the metric system. In fact, I want more back than just the 7 milliliters going metric cost us: I want the full Fifth.

  1. While writing this article, I actually messaged a number of good attorneys I know to see what they said. Most have done it under very specific kinds of circumstances, but it’s not a normal thing. I did it with a client once, and it worked out very well. But I was a fresh attorney then, and under the same circumstances that then existed, I’m not sure I would risk it today. [↩]
  2. Unless you’re representing a snitch looking for a deal, which I personally am not going to do. [↩]