“The mob takes the Fifth,” Donald Trump said at an Iowa campaign rally in September 2016. “If you’re innocent, why are you taking the Fifth Amendment?”
The public and the media—and apparently the President—have a basic misimpression about the history and purpose of the Fifth Amendment’s protection against self-incrimination. As the Supreme Court has long recognized, one of the basic functions of the Fifth Amendment is to protect the innocent, and the invocation of one’s Fifth Amendment right against self-incrimination says nothing about guilt. Yet the (mis)perception remains that if a person “takes the Fifth” it must be because they have something to hide, because only guilty people invoke the Fifth.
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