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Pleading the Fifth, What Does It Mean?

Former National Security Michael Flynn is pleading the Fifth Amendment in a bid to stop Congressional subpoenas into his documents and records regarding the 2016 election. The Fifth Amendment is one of the most important amendments in the Bill of Rights, as it protects criminal defendants from being forced to testify against themselves. Indeed, the famous “right to remain silent” is derived from the Fifth Amendment’s protection against self-incrimination. Legal experts are currently debating whether Flynn’s use of the Fifth Amendment is proper here. Regardless of Flynn’s legal standing, there are a few things that Average Joes can learn from this latest Trump debacle:

How Does the Fifth Amendment Work?

Like the right to remain silent, “pleading the Fifth” can only be used when the government is attempting to coerce a human being into testifying against him or herself. In other words, “pleading the Fifth” is a shield against government coercion.  A human being can only plead the Fifth in response to government inquiry; one cannot plead the Fifth in anticipation of a pending criminal case.

pleading the fifthIt is important to note that the Fifth can only be invoked if the government is actually trying to obtain information. Like the right to remain silent, being in government custody is not sufficient to plead the Fifth.  In other words, Flynn cannot invoke the Fifth in response to being pulled over by a police officer for running a stop sign. Likewise, Flynn cannot plead the Fifth just because the police officer arrests him.  Pleading the Fifth would only be relevant if the police officer begins asking questions about why Flynn ran the stop sign.

Finally, the Fifth Amendment can only be plead in response to individual questions. A defendant cannot plead the Fifth as a blanket defense. In other words, Flynn cannot tell the Senate he pleads the Fifth and then walk out the building. He must answer each individual question with “I plead the Fifth,” if he wishes to use the Fifth to answer each question.

What Is the Difference Between Pleading the Fifth and the Right to Remain Silent?

The two are very similar since they both come from the same source, the Fifth Amendment right against self-incrimination. However, since the right to remain silent is one aspect of the Fifth Amendment, pleading the Fifth is a much broader protection than the right to remain silent.

The right to remain silent only extends to verbal testimony. Pleading the Fifth, on the other hand, will protect a party from a demand to produce documents or other evidence which could incriminate the party. In Flynn’s case, he cannot exercise his right to remain silent in response to a subpoena, but he can plead the Fifth to stop the demand for his documents.

Are There Any Limitations to Using the Fifth Amendment?

The biggest limitation to the Fifth Amendment is that the Fifth can only be used as a shield against criminal prosecution. If a state sues a parent for child support, a civil action, the Fifth Amendment would protect the parent from accusations of child endangerment, but it would not protect the parent from wage garnishment or other child support collection.

The second limitation is that the Fifth Amendment only protects human beings. Corporations, despite their legal status as people, currently have no right to plead the Fifth Amendment. This distinction can be seen clearly in the Flynn case; although Flynn can plead the Fifth to protect himself, his businesses have no such protection.

Jason Cheung


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