On Wednesday, two executives at the political consulting firm behind what has become known as the “Pee Tape Dossier” invoked their Fifth Amendment privileges in a closed-door congressional hearing. Donald Trump quickly took to his Twitter account early Thursday morning to suggest that the executives’ taking the Fifth meant that the FBI, the Democratic Party, and the Russian government all somehow conspired to create the now-infamous dossier.
(Readers unfamiliar with the dossier, also known as the “Russia Dossier” or “Steele Dossier,” and its allegations against Trump can learn more by visiting this link.)
Trump’s morning tweet was far from the first time that the president has publicly suggested that taking the Fifth means a person is actually guilty of a crime. Last year when he was on the campaign trail — after a technician who helped Hillary Clinton set up a private email server took the Fifth before Congress — Trump repeatedly said that no innocent person would ever use his Fifth Amendment rights.
“The mob takes the Fifth Amendment,” Trump said at one campaign rally. “If you’re innocent, why are you taking the Fifth Amendment?”
Trump’s statements marked a dramatic shift in his own apparent views on the issue of the Fifth Amendment — because Trump himself once took the Fifth a staggering 97 times in a sworn deposition.
Workers of firm involved with the discredited and Fake Dossier take the 5th. Who paid for it, Russia, the FBI or the Dems (or all)?
— Donald J. Trump (@realDonaldTrump) October 19, 2017
And earlier this year, former Trump National Security Adviser Michael Flynn — who was forced out of his job after less than a month when his deep ties to Russia became public — said that he would take the Fifth if he were forced to testify before Congress, a decision supported by Trump.
Trump’s own spree of taking the Fifth came during proceedings for his 1990 divorce from Ivana Trump, the first of his three wives. He invoked the Fifth Amendment to the United States Constitution, which protects against self-incrimination, every time he was asked about his affairs with other women.
Adultery remains, technically, a crime in the state of New York — Trump’s home state and the site of his marriage and divorce.
On Wednesday, Peter Fritsch and Thomas Catan of the Washington political consulting firm Fusion GPS took the Fifth rather than answer questions from a group of congressional investigators in a private hearing. But their lawyer said that they invoked their Fifth Amendment rights only because the House Intelligence Committee investigation was not “serious,” and that they believed that Republicans on the committee were simply trying to “demonize” them for their connections with the “Pee Tape Dossier.”
Joshua Levy, the lawyer for the two Fusion executives, said that they would cooperate with other investigations into possible collusion between Trump and Russia. And indeed, in August, one of the firm’s founders, Glenn Simpson, testified to the Senate Judiciary Committee for more than 10 hours without invoking the Fifth Amendment.
The Fifth Amendment was designed primarily for criminal defendants and prohibits the government from forcing a defendant to give incriminating evidence against himself or herself. Courts have ruled that there must be a real possibility of self-incrimination for a defendant to invoke the Fifth Amendment. Witnesses in criminal trials may not take the Fifth as a way to get out of testifying — though they may take the Fifth in response to specific questions, according to an explanation by the legal site Lawyers.com.
Why are the Fusion GPS executives able to pick and choose when to take the Fifth? The standards for witnesses before Congress when it comes to the Fifth Amendment have been interpreted somewhat more broadly by the courts.
According to an analysis by the Congressional Research Service, witnesses in congressional investigations may take the Fifth if their testimony is “compelled,” that is, if they are forced to testify against their will by subpoena or other legal means — and if they reasonably believe that their testimony might later be used against them in a criminal proceeding.
“Even a witness who denies any criminal wrongdoing can refuse to answer questions,” according to the CRS explanation.
The Fusion executives had earlier said that if the House Intelligence Committee, chaired by Republican Devin Nunes — a leading Trump supporter in Congress — forced them to testify, they would refuse, taking the Fifth. Their reason was simple: Nunes himself. Levy accused Nunes of “bad faith” in running the House investigation.
Levy said Nunes was using the investigation as a way to discredit the dossier, rather than to uncover “whether the Russian government interfered with our election.” Levy called Nunes actions in the investigation “chilling.”
Nunes stepped aside from chairing meetings of the House Intelligence Committee after it was revealed in April that he had held a secret meeting at the White House where he was fed information claiming that Trump had been monitored by United States intelligence agencies during the 2016 presidential campaign.
Nunes then held a press conference announcing the allegations — but later walked back his claims, saying that he was unsure Trump had been wiretapped after all. Trump himself had at the time recently claimed that President Barack Obama ordered wiretapping of Trump Tower during the campaign — a claim for which no evidence has ever appeared. In September, the U.S. Justice Department confirmed that no evidence to support Trump’s claim existed.
Nunes has continued to be involved in the House Intelligence Committee Russia investigation, however, despite no longer attending meetings due to his close ties to Trump.
[Featured Image by Drew Angerer/Getty Images]