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Opinion Taking the Fifth should disqualify a politician from taking office

Former president Donald Trump departs Trump Tower in New York City on Aug. 10. (David Dee Delgado/Reuters)

Donald Trump invoked the Fifth Amendment more than 400 times in New York’s investigation into his business’s finances. Of course, the defeated former president and alleged mishandler of classified material has every right to avoid self-incrimination, but that doesn’t mean he’s protected from adverse judgment, either from the jury in this civil suit or from voters.

Indeed, taking the Fifth — especially concerning his alleged misconduct related to the attempted coup — should disqualify him from the presidency.

Laurence H. Tribe, a constitutional scholar at Harvard Law School, explains that a president “has a constitutional as well as a moral duty to see to it that the laws are faithfully executed — not just a passive duty to avoid violating the law, a duty everyone of course shares, but an active duty to ensure that the law is fully enforced as well as complied with. That active duty arguably includes an obligation to avoid invoking various otherwise available privileges — including the privilege to withhold criminally incriminating information.”

Tribe adds, “In that special sense, a president or a former president, more than any other public official or private citizen, arguably betrays his or her duty to the American people by taking the Fifth.”

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Of course, oaths mean little to Trump. As Norman J. Ornstein, an author and political scientist at the American Enterprise Institute, notes, “Fealty to the law meant nothing to him. The country’s interests meant nothing to him. The only oath he has taken is to his own greed and self-preservation.” But that does not mean voters can ignore the obvious conflict that occurs when someone simultaneously thwarts a government investigation and pledges to enforce the Constitution.

Nor should the obligation to one’s oath be limited to the president. Tribe, in his 1978 book “American Constitutional Law,” discusses the importance of the oaths of office, which are required not only for presidents but also for Supreme Court justices, state legislators and every executive and judicial officer in the country. Tribe notes that Article VI of the Constitution specifies that public officials must take an oath “not just to obey the Constitution and laws of the United States but ‘to support this Constitution.’ ”

In other words, should members of Congress implicated in the plot to overturn the 2020 election choose to take the Fifth, they would be setting up a conflict between their self-interest and the interest in upholding and supporting the Constitution. The same goes for Sen. Lindsey O. Graham (R-S.C.) should he refuse to answer questions in the inquiry regarding the pressure campaign on election officials in Georgia.

True, the Constitution spells out no disqualifications for federal office, other than conviction through impeachment and Section 3 of the 14th Amendment, which bars a person from office if they have “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” But voters certainly should consider the underlying conflict when a candidate for office takes the Fifth, especially when the issue goes to the core of our democracy.

Defenders might insist that Trump has not been convicted of any crime. But voters are allowed to draw their own conclusions about not only his underlying conduct but also his refusal to testify. As Norman Eisen, who served as co-counsel for the House Judiciary Committee during Trump’s first impeachment hearings, puts it, there is a “bond” between an official and the people of the nation, which is “created by election or appointment and also cemented by the oath of office.” Just as a civil jury can draw an adverse conclusion from Trump’s refusal to answer questions, “it should be disqualifying for Trump if he seeks to run again.”

As lawmakers decide whether to cooperate with prosecutors or grand juries, they, too, should keep in mind: Taking the Fifth is their prerogative, but it is the prerogative of voters to hold it against them as evidence that they are putting themselves above the interests of the country.

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