Taking the Fifth

THE OPEN MIND
Host: Richard D. Heffner
Guest: Floyd Abrams, Esq.
Title: “Taking the Fifth”
VTR: 1/24/87

I’m Richard Heffner, your host on The Open Mind. You known, as you get older, and older still, you have a tendency to look back at what in your lifetime you’ve said, done, built, written…perhaps trying to determine what most fittingly your epitaph might be. And in this Constitutional Bicentennial era – after all, in the years immediately ahead, our great written document, and the early period when its initial patterns and precedents were first set, will celebrate 200 years – in this Bicentennial I’m often looking back at my Documentary History of the United States, turning in it to the Constitution of the United States, with all its amendments, but particularly its first ten, Americans’ sacred Bill of Rights, and wondering all over again at the incredible wisdom of our Founding Fathers. And, whenever events of these days press upon us the question of rights – considerations of free speech, free press – I think about my own very wise friend, my guest today, constitutional attorney Floyd Abrams, who at this table referred once to someone else as “a First Amendment voluptuary”. Without question, of course, attorney Abrams can be, often is referred to that way himself. But what I open to question these days may be an absolutely equal devotion to Fifth Amendment concerns. For recently, claiming its guarantees once again seems – at least now to a politically liberal constituency – to be somewhat less privileged, to be perhaps based a shade too cleverly “on the advice of counsel”. And I would ask Mr. Abrams quite seriously: in the pantheon of rights, literally on a scale of one to ten, how fares the Fifth?

Abrams: Well, the Fifth is doing just fine in terms of what the law is and in terms of the rights of people to use it. Ah, I don’t think I share the sense expressed by you in your introduction, though, at least to the extent that I don’t think there’s anything wrong with criticizing people in the circumstances in which the Fifth Amendment has been taken sometimes in the last few months. In short, people have the right to take the Fifth Amendment, but we have the right also to talk about it and maybe pass some judgments.

Heffner: Yes, but doesn’t that become…or maybe more fairly, hasn’t that become in our own past, hasn’t that moved from criticism of the general or of the specific, these particular individuals, hasn’t it become almost a criticism of the general idea of “on advice of counsel, I refuse to answer that question”?

Abrams: Well, there are some people who think that way. And there are some people, indeed, who have proposed that the Fifth Amendment not be available for public officials. Indeed there are some people that don’t like that at all. I think one of the exquisite ironies of all this is that the Reagan Administration should have discovered the Constitution through the prism of the Fifth Amendment. Who would have thought it? My own view is that there are circumstances and circumstances. The, the teachers that took the Fifth Amendment in the fifties were not the same as Colonel North, Admiral Poindexter in taking the Fifth Amendment now. They had the same right to take it, but one is allowed to, entitled to and ought to, I think, pass in different sorts of judgments.

Heffner: What does it say about the attorneys who are the counsel on the basis of whose advice one pleads the Fifth?

Abrams: Well, I think we’d have to talk about what role attorneys play in our country. When someone goes to an attorney, Colonel North, say, and asks about his rights, any good attorney would tell him, at least as the first stage of analysis, “You have a right to claim the Fifth Amendment”. And if you do, they can’t ask you anything about the activities that you did which could subject you to criminal prosecution. There is a second level, though, and the question I think that’s interesting to talk about, is what role, if any, attorneys ought to play in resolving the second question, “Should I take the Fifth? Is it a good idea? Ought I, in my broader interest, and in the broader interest of the American public, take the Fifth Amendment?”

Heffner: What do you mean, just a minute…what do you mean by “in the broader interest of the American public”?

Abrams: Well, because I view people like Colonel North, Admiral Poindexter as people who have a strong sense of duty, ah, and who have a strong sense of service. These are people that would die easily for their country. And so I find it ironic that people that would give so much of themselves, ah, if asked to, in this circumstance aren’t viewing it that way at all…are viewing it, so it seems, entirely through the prism of deciding, “What’s the best way for me to function to avoid subjecting myself to criminal liability?” It’s at least ironic, I think, that they would view things that way, if that’s the way they’re viewing them.

Heffner: But you know, you say “ironic”. Are you willing to leave it at that? It’s ironic and then turn somewhere else? I have had the feeling in discussing this with you that that’s not where you would let it lie.

Abrams: No. I, I…

Heffner: Is that fair?

Abrams: No. Fair, fair. I, I’d go farther. Ironic is the first word I would use. If find it offensive when…

Heffner: We’re getting a little…

Abrams: Sure, as time passes I’ll think of my next word in a moment. But I find it offensive to have public officials who have performed, I am sure, in what they believe is the best interest of their country, ah, under what they believed to be authority to so perform their duties, to refuse to comment about what they did, because they think it might subject themselves to liability. They have a right to do it, but I think we have a right to sit here and say, “What does it tell us when they do it? Are they simply thinking of themselves or are they hiding something?” In my own sense, this may be wrong, but my own sense is, is that they received legal advice. The legal advice was, “You ought to take the Fifth Amendment because it provides you with nearly full protection in this circumstance”. I think that’s a too narrow way to view the behavior and the appropriate behavior of people who have served the country, ah, and who I believe, probably think they‘re doing the right thing under the circumstances.

Heffner: Why aren’t you on the battle ground there, right at the barricades saying, “Look, never mind this business about Fifth Amendment Commies and never mind this business about Fifth Amendment and then fill it out…Fifth Amendment Irangate victims or perpetrators or what-have-you”? I, I’m surprised with your, your voluptuary attitude toward the First.

Abrams: Because I take, I take a more sophisticated view, I think, than you do of this matter.

Heffner: Wait a minute…of the amendment? Or of this matter?

Abrams: No. Of this matter and the utilization of the Fifth Amendment here. If anybody thought, if I thought that Colonel North had pocketed money from this fund, if part of the diversion went to him, or if anyone had suggested it, as no one has, well then that’s the sort of situation in which one understands taking the Fifth Amendment or thinking about taking the Fifth Amendment. There are lots of other circumstances. I come to it through the view of people who are people, who are people of honor, who if they have done something wrong, have done it wrong in the service of what they perceived to be the interests of their country and, therefore, I think they should come forward and testify about it.

Heffner: Of course, you won’t remember, which is one of the advantages of my age, but if you’re going back to the fifties, wasn’t that said about those who took the Fifth, the teachers…

Abrams: Yeah.

Heffner: …for instance, that they were public employees, they were teachers, they had an obligation to the nation, they should not take the Fifth.

Abrams: Yeah, but I, I think it’s wrong. I mean I think that they were not only entitle to take the Fifth Amendment, if they thought that testifying would incriminate them or might incriminate them, but that I wouldn’t have, didn’t and wouldn’t now, pass any adverse judgment on them for doing so, particularly in the circumstances of those times. Here we have this odd situation where the Congress fawns over these, these two very senior officials as if it is a badge of honor to claim the Fifth Amendment, rather than a protection which all American citizens have.

Heffner: You know, Russell Baker wrote a column in The Times not so long ago in which he sort of said that. He was having been there as a junior newsperson…

Abrams: Yeah.

Heffner: …at the time of the teachers claiming the Fifth back in the fifties. He was very annoyed at what he said then. He talked about the fawning, but I haven’t been aware quite so much of that as I have been of those who have been critical of taking the Fifth.

Abrams: Well, I saw the Congress that day…

Heffner: Yeah.

Abrams: …and, and they were, they were jumping over each other, the Congressmen, to say how well they understood, ah, the right of these people to take the Fifth Amendment. Now that’s all perfectly true, it just doesn’t come with terribly good grace from people who would not come as easily to lesser people and more oppressed people taking the Fifth Amendment.

Heffner: Are there times when you have the same feeling about the First?

Abrams: Not in this way. I mean I have the feeling about the First Amendment sometimes that people have a right to claim it, it doesn’t come up that often, but, but to claim First Amendment privileges and sometimes they’re doing it in circumstances where they are protecting misbehavior. It tends not to be public officials, certainly not public officials in the performance of their public duties. But sure, sure there are situations in which the First Amendment is stretched a bit. Again, we’re not talking here about a situation in which these people don’t have a right to claim the Fifth Amendment. My only view is that they do so and we, we have this odd scenario then of, of members of Congress praising them as if Congress had been waiting for someone to claim the Fifth Amendment in front of them, ah, and in which people who, I believe, have a, have this enormous sense of honor, duty, service to the country, seem, for their own benefit, for their own protection, and if I hear Colonel North correctly, because he, he seems to think that it’s the right thing to do, to claim an amendment in circumstances in which they need not have done so.

Heffner: If I understand correctly, and you’ll stop me, I’m sure, if I’m wrong…ah, the Fifth is designed to prevent the pressure upon an individual that government might bring, perhaps even that public opinion might bring. Am I, am I wrong there, kind of pressure that will make someone, would make someone feel he was better off testifying against himself?

Abrams: Yes. I mean it starts with a star chamber, it starts as an effort to avoid torture, it moved on from there to an amendment embodied in our basic charter designed to avoid forcing people to testify against themselves, even by the sort of enormous pressure that can sometimes be brought to bear, yes.

Heffner: But you sound as though you are, in the person of a distinguished attorney, not involved in this, in these cases, bringing something of that public pressure yourself because someone has claimed the privilege…

Abrams: I think it’s fair to say…why don’t we put ourselves in the position before the took the privilege…ah, suppose they come to me or suppose they’d asked for your advice…

Heffner: But I’m not an attorney. They come…

Abrams: But it’s not just a legal issue, you see. It, it is not just a legal issue. It is only because we are such an over-lawyered society that we view this entirely as a legal issue. All the law says is that they’re allowed to do it. That’s it. They’re perfectly entitled to do it. On the level of what judgment one passes when they do it, on the level of whether they would serve the country better, they, they don’t have to think about that, but they’re allowed to think about that. I mean surely if they had testified fully, no one would have said, “My heavens, but they could have claimed the Fifth Amendment. They should have. They owed it to us to claim the Fifth Amendment”. Nonsense.

Heffner: Would you not, look, be somewhat annoyed if someone were to bring that kind of pressure upon you or your client? “You have the right, Counselor, your client has the right to claim the Fifth, you certainly have the right to suggest that he or she claims the Fifth, but, my goodness, is that right, is it moral, should a public official do so? Should a teacher do so?”

Abrams: Well, I think it’s an appropriate question to be asked of a public official, particularly in these circumstances. I mean it is…

Heffner: What do you mean, “In these circumstances”?

Abrams: Well, a public official, at the highest levels of government, engaged in behavior on behalf of the government itself, I mean no one has suggested they did anything for private gain, so this is public policy we’re talking about. We’re talking about people engaged in public policy activities on our behalf, and, and all I’m saying is that I hope that when they decided to take the Fifth Amendment, that they factored in not only their self-interest as they‘re entitled to do so, but the interest of the public as a whole, because that’s what I look to in terms of a public official behaving.

Heffner: And you hope that counsel did the same thing in advising them?

Abrams: Well, I’d, I’d like to know that. I remember some years ago I, I had occasion to advise some journalists who had been subpoenaed to appear at a hearing that Vice President Agnew caused to be brought about. He was trying to quash the Grand Jury that had been, that had been started to look into his criminal misbehavior. And the way he tried to do that was by lining up all the journalists who had written about it, calling them in order to show that had been improper leaks by the Department of Justice. I talked with two of the journalists that I represented prior to the time they were to testify. And I told them you have a right to claim the first Amendment and the First Amendment goes this far and there are some cases and it’s not so clear. You have a right to claim the Fifth Amendment, if you do, they can’t ask you anything. And then we talked about whether they should take the First Amendment, whether they should take the Fifth Amendment and together we decided that it wasn’t in their interest, broadly put, or the interest of the public, as they perceived it, for them to take the Fifth Amendment. I think that was a wise and societally justifiable conclusion to reach.

Heffner: And if a position were justifiable in terms of society’s interests, but not in terms of the immediate interests of your client, what would counsel advise?

Abrams: Counsel would discuss with his client the different calls upon him. I mean at the narrowest level, certainly the first level is, “We can get you out of this, all you have to do is take the Fifth Amendment”. The second level, if the client is so inclined to talk about this, is there anything else you want to talk about? Well, with journalists, at least, the journalists, ah, had a great disinclination to take the Fifth Amendment to protect themselves. In part for reputational reasons, but, but for other reasons beyond that. They thought that they ought not to.

Heffner: Well, let me, let me ask this question. You talk about these being high governmental officials. Back in 1968, it was Sidney Zion and The New York Times who wrote about Judge Friendly, at that time, proposing a Constitutional amendment that would substantially weaken the privilege of the Fifth. And former governor Thomas E. Dewey went beyond that, he said, “We could get along just as well if we repealed the Fifth Amendment”. Then he quoted Arthur Goldberg as saying about the Fifth, “It reflects many of our fundamental values and most noble aspirations, our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt, our preference for an accusatorial rather than an inquisitorial system of criminal justice”. Now, you’re, you’re almost saying that maybe we ought to give up this approach and I, it seems to me, it sounds that way to me, and I wondered when you talk about government officials, would you be in favor of eliminating the privilege, for government persons?

Abrams: Absolutely not. All I’m saying is that if Colonel North runs for office, I’m entitled, as a citizen, to pass judgment upon him because of the fact that as a senior government official engaged in high level government policy, instead of defending that policy, and instead of defending what he did, he chose to take the Fifth Amendment.

Heffner: Yes, but as a person who has been identified forever with the First Amendment, a purist in this area, for you to make that statement, isn’t that a kind of pressure on the use of the Fifth by someone like Colonel North? And you don’t know any more than I do, what there is to avoid disclosing.

Abrams: Let me speak in First Amendment terms. The First Amendment presupposes that it’s a good idea to have robust and uninhibited debate about things. That includes robust and uninhibited debate about the performance of public officials in their public duties. Colonel North, Admiral Poindexter and others have been engaged in performance, misperformance, or whatever one thinks, into the highest level positions this government has to offer. They chose to protect themselves, as they are entitled to, and as I believe they should be entitled to do, by taking the Fifth Amendment, rather than disclose what they did when they worked for us and our viewers today. I am entitled to pass some sort of judgment on them for doing so. And I don’t believe that that violates the spirit, let alone the letter of the Fifth Amendment by doing so.

Heffner: Alright, let’s deal with entitlements. What other entitlements are you going to claim as others claim Constitutional privileges? I mean, where else are you going to say, “Well, look…I’m not trying to eliminate them, they have their right, their counsel has the right to advise that these be called upon, but I don’t like it and I’m a free citizen and I’m going to put on the screws as far as I can by publicly denouncing them for it”.

Abrams: The next thing I would go after them for is when they write their memoirs, ah, and, and, disclose for the first time, having not disclosed to Congress and the public when they were asked, disclose for the first time the very things that they did in, in public service that they wouldn’t tell us at the appropriate time.

Heffner: But I thought you were for robust, free exchange?

Abrams: I’m engaged in it right now.

Heffner: Right now. But you don’t want them to in the books they’re going to write.

Abrams: I want them to speak out vigorously, ah, but as a citizen, I think that, that the forum for them to speak out is provided now, by Congressional Committees and that the situation in which they should speak out in the first instance, at least, should not be in a profit making one from their point of view.

Heffner: Floyd, do you feel that this is largely a matter of the “ins” pointing with pride and the “outs” viewing with alarm?

Abrams: Well, I hope not. There’s always a tendency, you know, we’re all human and it’s, it’s always possible that it’s, you know one takes more pleasure than one should at seeing people squirm, ah, who maybe one doesn’t agree with politically. It don’t think I’m basing my view on that. I think I would have just the same view if this were, you know, one of the aides of President Carter or, or anyone else in that level of position. I suppose where I come out is that I look to high level government officials for very special sort of behavior or at least the willingness to defend that behavior. And when I don’t see it, it seems to me appropriate to comment adversely on it.

Heffner: Why not bite the bullet and prohibit recourse to those privileges for those, not for everyone, and not as a surprise, but if you opt to take a governmental job, these are your basic responsibilities to the public at large.

Abrams: Well, I think that would go much too far. It’s unconstitutional, I think. But, but that aside, I think it goes much too far in the direction of making government officials a third class, ah, citizens.

Heffner: But you’ve sort of done that.

Abrams: But I don’t think so, I don’t think so.

Heffner: You’re saying, you’re saying in this position you are…

Abrams: There are unscrupulous prosecutors in this country who might well try to subject government officials to unjust prosecutions to drive them out of office because they would claim the Fifth Amendment. I, I hold no brief for that. I don’t want to empower to do that. But I do think that, that public scrutiny has a value, ah, ah, sunshine sort of value of its own. And the public scrutiny that the Congress is at its best in putting aside its political motivation, but the Congress is trying to lead to is one which I wish that these people had thought about seriously, ah, prior to making a decision which they had a right to make, to, to protect themselves.

Heffner: I guess I always have to come back to the same old question, do you feel that way, and in a sense you’ve answered it already, but do you feel that way more and more frequently about other Constitutional privileges?

Abrams: No, no. I don’t…

Heffner: Just the Fifth?

Abrams: No, not just the Fifth. And I, I mean the Fifth is a great part of our charter of liberty in this country, we ought to have it. It, it is essential. I…

Heffner: As long as it’s not mis-used.

Abrams: It can even be mis-used. But, but, but if it is used in certain circumstances, it benefits, not harms public debate to comment on it.

Heffner: Are there any areas where you would say, “Look, this document and its first ten amendments written 200 years ago…we live in different times. There are different needs. Jefferson would have recognized that, etc. etc. Therefore, I would modify, to this extent, this traditional part of the first ten amendments”?

Abrams: Well if we’re going to do it, I would go back to the very sort of debates that were engaged in at the time the Constitution was written. I still find attractive one of the things that Madison wanted in, but couldn’t get in…

Heffner: What was that?

Abrams: Freedom of conscience. He made a pass at getting that in the Bill of Rights and just didn’t have enough support to get it in. I would think that would be a good idea to have in. But I would be so nervous to start again, re-drafting this great document and have people in politics, if I can use that pejorative word, sit down together and try to re-draft, make exceptions to, start all over again, that I am, I am delighted and could not be more content to just let it lie exactly as it is.

Heffner: But if you were King, what are the areas where you would make some changes?

Abrams: Oh, I think I might flesh out some more areas, you k now, we have, we have a Ninth Amendment to the Constitution, not too well known, which, which says in effect that the, the enumeration of certain rights n the Bill of Rights should not be construed to deny or disparage the other rights retained by the people. It’s hard to know what those o0ther rights are retained by the people. But in the area of personal privacy, for example, I would probably try to spell out some more, just what those rights are, or to articulate, at least in some general way, so it could not be argued anymore as it sometimes is by critics of the Supreme Court, that they have created out of whole cloth, a right of privacy. I think that’s an important right of Constitutional dimensions and I, if I were doing it over again, I think I would recognize it.

Heffner: Excuse me. I’m speechless, almost. Floyd, are there any areas in which the present Court has modified traditional interpretations of the Fifth?

Abrams: Yes. The present court or the court that we’ve had for some time, has allowed, or held Constitutional, certain laws which have, on their face, limited what, what had been thought to be the Fifth Amendment rights. They’ve gone pretty far in that direction by affirming use immunity, certain ways to require people to testify by saying that they can’t be prosecuted if they do. There was a pretty strong argument that the Fifth Amendment really meant that you couldn’t be compelled to testify, not just if Congress promised not to punish you, you just couldn’t be compelled at all. The court has affirmed legislation of that sort. And the immunity area, we’ve gone pretty far down the road of saying that congress or the states can trade off Fifth Amendment rights for immunity on the other.

Heffner: Come back some time. Maybe two years, four year, five years from now you’ll come back before and let’s see whether changes have taken place, ah, and whether you voluptuaries have won or lost. Thanks, Floyd Abrams, for joining me today.

Abrams: Thank you.

Heffner: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, today’s subject, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as an old friend used to say, “Good night and good luck”.

Continuing production of this series has generously been made possible by grants from: The Rosalind P. Walter Foundation; The M. Weiner Foundation of New Jersey; The Mediators and Richard and Gloria Manney; The Richard Lounsbery Foundation; Mr. Lawrence A. Wien; Pfizer, Inc.; The New York Times Company Foundation.