It could just mean he has a good lawyer. Or that he’s standing up for principle.
The news that former National Security Adviser Michael Flynn invoked the Fifth Amendment in response to a Senate subpoena has raised a heated debate about the constitutional right not to incriminate yourself. Is it all right to infer guilt from silence, as Flynn himself and plenty of Donald Trump staffers have suggested in the past? Or does that inference undermine an American right by turning it into a damning admission?
It’s a complicated question. In a court of law, silence isn’t supposed to count as evidence. In the court of public opinion, however, it’s not so simple.
Common sense says the innocent should have nothing to fear. But sometimes principle demands silence. And sometimes an innocent witness would be acting self-destructively by testifying. The result is that we need to analyze each instance case by case. The best general rule is that there is no general rule.
The right itself, on close examination, doesn’t have an obvious rationale. Unlike some other provisions of the Bill of Rights, it wasn’t ancient when adopted by the framers. In old English common law practice, the accused was actually prohibited from testifying on his own behalf, so the issue of self-incrimination didn’t arise.
The need for the right only became salient once a defendant was permitted to testify — which raised the question of whether a defendant could be required to appear under oath. And for many years, juries were permitted to infer guilt from a defendant’s refusal to testify. It was not until 1965 that the U.S. Supreme Court banned prosecutors from arguing for the inference. And not until the 1981 case of Carter v. Kentucky did the Supreme Court hold that defendants are constitutionally entitled to have the judge tell the jury that no inference of guilt may be drawn from their silence.
The classic reason stated for the right against self-incrimination is that it protects a defendant against what the Supreme Court in a 1964 case called “the cruel trilemma of self-accusation, perjury or contempt.” That is, pleading the Fifth means the defendant doesn’t have to choose among speaking the words that could bring about his own conviction, lying under oath or going to jail for refusing to speak at all.
It’s not immediately clear why this choice is so terrible. Is it really worse to be convicted by your own words than by someone else’s? And while lying under oath is wrong and a crime, the temptation to do so doesn’t seem uniquely cruel. If you believe the lie will damn your eternal soul, well, then, tell the truth.
Perhaps the best reason to protect the accused from mandatory testimony is that a clever lawyer — or member of Congress — might distort the truth by confusing witnesses or catching them in a trivial lie that seems to be evidence of guilt but isn’t really. If this is so, the privilege against self-incrimination is a boon to the guilty that we tolerate to protect the innocent.
Crucially, this is also why a good lawyer would ordinarily tell a client not to testify if there is any risk at all of distortion.
Flynn is a perfect example. Even if he is innocent of all crimes, his case is so publicly salient, so politicized and so important to the broader investigation of the Trump administration that his testimony would be a prime target for distortion. Indeed, if a lawyer let Flynn testify, you’d seriously wonder if the lawyer was competent to represent him.
To make the need for silence even more compelling in Flynn’s case, congressional questioning isn’t subject to the judicial supervision of courtroom questioning. Senators and representatives can ask essentially anything they want, not only questions that are relevant or that are more probative than prejudicial.
That’s why you can’t always infer guilt from taking the Fifth. In the real world, targets of investigations lawyer up. The lawyers, aiming to keep their clients out of jail, tell them, rightly, to keep quiet. That isn’t evidence of guilt. It’s evidence of having hired a decent attorney.
The other nonguilty reason for silence is principle. When Hollywood writers and actors were called before the House Un-American Affairs Committee in the 1940s, many took the Fifth not because they themselves were communists but because they didn’t want to name others who were.
Looking back on that ugly episode, liberals lionize those who remained silent, generally at significant personal and professional cost. Indeed, testifying to stay off the blacklist is often retrospectively seen as a betrayal, whether rightly or wrongly.
Flynn may not have a principled reason not to testify. But if he truly believed congressional Democrats were engaged in a witch-hunt, as Trump has asserted, he would have one. And it would be wrong to dismiss such principles out of hand, even if we don’t agree with them.
It emerges that while Flynn’s taking the Fifth looks bad, it’s also inevitable — and therefore not on its own strong evidence of guilt.
To be sure, former FBI Director James Comey has no such qualms, and his voluntary testimony tells you he’s confident of his own rectitude. But Comey is also a lawyer and a former prosecutor, deeply familiar with the testimonial system. More important, Comey isn’t under investigation, as Flynn is.
Inferring guilt from silence therefore doesn’t inherently undermine the right to remain silent, at least outside of court. The trouble with this inference is simply that it may not be logically correct. There are plenty of good reasons to shut up when questioned under oath. Being guilty is just one of them.
~Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University.