Mike Flynn is taking the Fifth. So what?

Unfortunately, Congress has terrible track record of safeguarding the Fifth Amendment privilege against self-incrimination. Too many members of Congress, from both parties, have treated invocation of the Fifth Amendment as evidence of illegal conduct. In investigations ranging from the collapse Enron to botched gun trafficking investigations to Internal Revenue Service (IRS) treatment of conservative groups, witnesses have been subjected to public innuendo and accusations of criminality after signaling their intent to assert the Fifth.

That’s not how the self-incrimination clause of the Constitution is supposed to work. The Fifth Amendment privilege is not solely for the benefit of the guilty. The Supreme Court has described its basic function “to protect innocent men … who otherwise might be ensnared by ambiguous circumstances.” In criminal cases, invoking the privilege doesn’t imply guilt. And to protect the Fifth Amendment for everyone, Congress shouldn’t view it that way either.

Some legislators have sought aggressively to undermine the privilege. During the Red Scare, Sen. Joseph McCarthy (R-Wisc.), asked witnesses if they had spied for the Soviets, and once they answered “no,” he would declare that the witness had waived his Fifth Amendment rights with respect to any question related to espionage. More recently, Rep. Darrell Issa (R-Calif.), found IRS official Lois Lerner had waived the Fifth Amendment by declaring her innocence at the outset of a hearing. Issa’s legal ruling as chair later served as the basis for the House citing Lerner for contempt of Congress.

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