Zipping the lip
September 26, 2011By Dick Polman
The Founding Fathers took care to import the 17th-century British credo that citizens shall not be forced to give evidence against themselves. The guarantee against self-incrimination, as embedded in our Fifth Amendment, is indeed a fine civil liberties tradition. Nevertheless, it always looks bad when congressional witnesses clam up by "taking the Fifth."
Such was the case on Friday, when the CEO and CFO of Solyndra, the bankrupt solar power company, kept their lips zipped as members of a House investigatory subcommittee battered them with questions about why the firm went belly up after receiving half a billion bucks in federal loans from the Obama administration.
Solyndra's lawyers were merely being cautious when they advised their clients to remain silent in the midst of multiple investigations, but on the PR front they naturally took a beating. The Obama team had only recently hailed Solyndra as a visionary firm that would create jobs and buttress the U.S. solar industry...yet here were the Solyndra executives, in front of Congress, comporting themselves like Frank Costello, the mobster who took the Fifth in 1950 by saying, "I want to testify truthfully, and my mind don't function."
What a political embarrassment for Obama; a mere 16 months ago, he visited the solar manufacturing facility and declared that "companies like Solyndra are leading the way toward a brighter and more prosperous future." I won't recount the scandal here - I did that yesterday in a newspaper column, where I suggested that Solyndra was a metaphor for an administration in trouble - because today I'm more interested in the Fifth Amendment angle.
In terms of the political optics, Brian Harrison and Wilbur Stover looked like guilty men as they sat silently with their rote stonewalling statements. One of the counselors had already pleaded, in a letter to Congress, that "it would be a mistake to infer anything from this (silence) other than that it is the act of a prudent lawyer." The problem is, silence is typically viewed as proof that the person has something to hide.
But that stigma may or may not be fair; historically, all kinds of people have taken the Fifth. Mobsters like Costello have done it, yes. Jimmy Hoffa's corrupt Teamsters pals did it, yes (with Hoffa in the audience, yelling for his cronies to "Take Five!"). But sometimes the people in the hot seat have been victims who refused to aid their pursuers.
The first citizen to reportedly take the Fifth was actually a president, Ulysses S. Grant. His House Democratic antagonists complained in 1876 that his vacations in Long Branch, New Jersey were too lengthy; they demanded that he appear and explain himself. Grant simply sent a letter that quoted the Fifth Amendment, and, according to contemporary accounts, the Democrats "sat grim and silent beneath the well-merited rebuke contained in every line of the message."
Far more weighty was the Red Scare era of the 1950s, when Congress seemed intent on ruining the careers of Hollywood writers and actors who had once consorted with communists or who had maybe known communists or who had known people who once knew communists. Many of the witnesses took the Fifth - and were jailed for contempt - rather than aid and abet the red-baiting politicians. Most famously, playwright Lillian Hellman said, "I cannot and will not cut my conscience to fit this year's fashions." (She wasn't jailed, however. As House Committee on Un-American Activities chairman John Wood explained, in a gesture of misplaced gallantry, "Why cite her for contempt? After all, she's a woman.")
Indeed, last Friday, when the House subcommittee members hammered the Solyndra executives with questions that everyone knew they would not answer, a New York Times reporter wrote: "The atmosphere brought to mind newsreel depictions of the House Un-American Activities Committee questioning witnesses suspected of being communists."
But even though most Americans probably agree with what President Dwight Eisenhower said back in the '50s - "If a man has to go to the Fifth Amendment, there must be something he doesn't want to tell" - it's important to remember, courtesy of a Supreme Court ruling more than half a century ago, that it's unjust to equate criminal guilt with taking the Fifth.
As Justice Hugo Black wrote in that ruling, "The value of these constitutional privileges is largely destroyed if persons can be penalized for relying on them." That applies to everyone from Lillian Hellman and Zero Mostel to Oliver North and the executives from Solyndra.
And speaking of Zero Mostel, the great comedic actor who was blacklisted after taking the Fifth in 1955, he at least stonewalled with a sense of humor. If only the Solyndra executives had tried something like this:
The red-baiters demanded to know, "What studio are you with?"
"18th Century Fox."
"Do you want that statement to stand?"
"Make it 19th Century Fox."
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