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The politics of pleading the Fifth

McAuliffe State attorney Michael McAuliffe, pictured left, goes to bat for fellow Democrat Alex Sink in two different television ads, including the two-minute spot airing this week, implying Republican Rick Scott is guilty of something. To make his argument, McAuliffe points to a deposition in which Scott pled the Fifth Amendment 75 times.

The U.S. Supreme Court has ruled that invoking Fifth Amendment cannot be used to imply guilt. That means McAuliffe could never tell a jury what he’s on TV telling voters.

But McAuliffe says there’s a bright line between a state court room and the court of public opinion, a belief Scott seemed to reinforce Friday during his recent gubernatorial debate with Sink.

McAuliffe, who has helped craft public corruption legislation and shape Palm Beach County's ethics commission, called the Fifth Amendment "an invaluable right that protects the innocent as well as the guilty."

"If this was a criminal prosecution I would not refer to his invocation of the Fifth Amendment, but that’s not what we’re talking about," McAuliffe said. "This is not a criminal prosecution. It’s the political process and he has put himself out there to be vetted by voters. They're the jury in this case."

During the Univision debate on Friday, Scott seemed to reinforce the idea that things with strict legal meanings can be defined differently in a political setting. Asked why pleaded the Fifth so many times, Scott said it was because the prosecution was on a "fishing expedition."

But legal experts say that's not a valid reason. You can only invoke the right if you believe your answers could incriminate you.

"The Fifth Amendment is not a shield against fishing expeditions," said Nancy Dowd, a UF Levin College of Law professor. "If you want to cloak yourself in the protection of the Fifth Amendment it has to be for the reason that your answer could result in criminal liability."

The deposition in question (read it here) was initially used as a political weapon in the GOP primary by Attorney General Bill McCollum, who said that "technically" the Fifth Amendment does not imply guilt.

The deposition was part of a 2000 lawsuit over a software dispute between Nevada Communications Corp and Scott’s former company, Columbia/HCA. Scott had been forced to resign from the company in 1997 when the federal government embarked on a Medicare fraud investigation that resulted in $1.7 billion in fines.