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The History Of Using The Fifth Amendment

STEVE INSKEEP, HOST:

It's time to ask Cokie. We put questions to Cokie Roberts about how politics and the government work. And when we ask Cokie today, she has pledged not to take the Fifth...

COKIE ROBERTS, BYLINE: (Laughter).

INSKEEP: ...The Fifth Amendment to the Constitution.

Hi there, Cokie. I hear you laughing.

ROBERTS: Hi, Steve. Yes.

INSKEEP: The Fifth Amendment to the Constitution...

ROBERTS: I never take the Fifth.

INSKEEP: ...Good - is in the news because President Trump's lawyer Rudolph Giuliani has raised the possibility that his client could take the Fifth in the Russia investigation. Now, many Americans came to know the Fifth Amendment during the infamous McCarthy hearings, when Senator Joseph McCarthy was frustrated with witnesses who refused to answer his questions, claiming their Fifth Amendment protections.

(SOUNDBITE OF ARCHIVED RECORDING)

JOSEPH MCCARTHY: Question - are you a member of the Communist Party as of this moment? Answer - under the Fifth Amendment, I decline to answer.

I think their testimony gives, perhaps as clearly as any other, the reason why the Truman Democrat administration was crawling with Communists.

INSKEEP: More recently, Donald Trump himself raised that issue with the Fifth Amendment, asking why anyone would take it if they're innocent. So Cokie, we have questions about the Fifth Amendment, the first from a listener with the Twitter handle @CalvinPoolidge who asks, it's a short amendment. How much of its use is interpretation?

ROBERTS: It's actually a somewhat longer amendment than we think of it because it has other protections against possible government abuses, like double jeopardy or the taking of private property without just compensation. It also provides for a grand jury indictment and due process as well as that most-famous provision that no one should be, quote, "compelled in any criminal case to be a witness against himself."

INSKEEP: Is there any question of what that means?

ROBERTS: Well, the right against self-incrimination came about in British law centuries ago, primarily as a protection against the famous Star Chamber questioning so-called heretics. Then the colonies adopted the right and then inserted it of course in the Bill of Rights. Over the years, the interpretations have changed. The most far-reaching interpretation is the one that is actually most familiar to us, Steve, because of crime shows where the cops tell suspected criminals they have a right to remain silent. That so-called Miranda right is based on the Fifth Amendment. That right, too, has been changed over the years. But the basic idea that you can't be forced to confess or to incriminate yourself stands.

INSKEEP: And you understand where the idea came from because we can think of it as allowing criminals to get away, so to speak. But it's actually about limiting what the government can do to you.

ROBERTS: That's right. The Bill of Rights was all about that. And in fact, Madison had originally said that it should be used in civil and criminal cases, but the Congress struck civil.

INSKEEP: OK, only criminal cases.

Well, here's another question from John Grady - what is the conviction rate for those accused of federal crimes who've taken the Fifth?

ROBERTS: Oh, that's impossible to know. People take the Fifth all the time. It's not just high-profile people that we see on TV. It is regular people and in divorce proceedings, for instance. In fact, one of those people was Donald Trump who, in his first, very contentious divorce against Ivana Trump, took the Fifth many times to avoid answering questions about adultery. But we've seen sports figures asked about doping scandals, corporate titans involved in some sort of scandal or other. By the way, of the hundreds of people that McCarthy vilified, not one was convicted of any crime. But many did lose their jobs and of course their reputations.

INSKEEP: Cokie, thanks very much as always.

ROBERTS: Good to talk to you, Steve.

INSKEEP: Commentator Cokie Roberts.

You can ask Cokie your questions about how politics and the government work by emailing us at askcokie@npr.org or by tweeting us with the hashtag #AskCokie.

(SOUNDBITE OF ASTR SONG, "BLEEDING LOVE") Transcript provided by NPR, Copyright NPR.