Former President Donald Trump declined to answer questions in a deposition by New York Attorney General Letitia James’ office on Wednesday, invoking his right against self-incrimination.
The move follows an announcement that James’ office was considering filing a civil case against Trump over the Trump Organization’s business practices. “Thus far in our investigation, we have uncovered significant evidence that suggests Donald J. Trump and the Trump Organization falsely and fraudulently valued multiple assets and misrepresented those values to financial institutions for economic benefit,” James said in January.
Many who aren’t fans of the former president may think his decision not to talk is just a cop-out. Possibly. But it could also be a legitimate assertion of his privilege against self-incrimination.
It’s not clear why Trump asserted the Fifth Amendment or what the potential self-incrimination threat might have been. And while he may suffer civil consequences in a case against him as a result, it was the right move to make. With legal troubles mounting, he should plead the Fifth often.
The Fifth Amendment to the Constitution grants a person the privilege not to answer questions in a civil proceeding, like a deposition, if the answers might incriminate the person in future criminal proceedings.
But a witness like Trump, who asserts this Fifth Amendment privilege in a civil deposition, isn’t necessarily protected from consequences in the same way he would be in a criminal case. New York’s highest state appellate court has held that, in a civil case, failure to answer questions by a witness who is a party “may be considered by a jury in assessing the strength” of the opposing party’s evidence that the witness could have contested.
Indeed, the same New York state Court of Appeals has also long held that a witness’s invocation of the Fifth in a civil case “allows the trier of fact to draw the strongest inference against him that the opposing evidence in the record permits.”
That may be a problem for Trump. And his lawyers probably knew it well in advance.
But it’s probably an acceptable risk in this situation. When it comes to the Fifth Amendment, most of the time, the witness and his or her attorney decide to decline to answer questions and assert the privilege. But that raises the issue of possible abuse: The witness isn’t talking, and the lawyer isn’t, either. How, then, do we know whether the witness correctly invoked the privilege or unfairly took advantage of the right?
It’s difficult to police, because most of the time, no one finds out the information since the witness has remained silent.
In his statement attacking the New York attorney general and her investigation, Trump didn’t provide specifics about how the deposition questions posed a threat. No surprise there: It wouldn’t make much sense to invoke the Fifth at a deposition and then disclose the information he held back in a press release. He said only that he “declined to answer the questions under the rights and privileges afforded to every citizen under the United States Constitution.”
Many who aren’t fans of the former president may think his decision not to talk is just a cop-out. Possibly. But it could also be a legitimate assertion of his privilege against self-incrimination. Either way, it was a smart move. Others may think he did it only because he knows he’s guilty. But here’s the thing: Trump doesn’t need to actually believe he’s guilty of a crime to assert the Fifth Amendment. He just needs to believe it could hurt him if he answers the questions. And the courts will give him the benefit of the doubt.
It’s true that the witness and the attorney make that initial choice to assert the privilege, but ultimately, the court determines whether the witness properly invoked the right. As the Supreme Court has put it, “to sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.”
The protection extends to direct incriminating answers and responses that could establish a “link in the chain of evidence” necessary to prosecute the witness.
A court would almost surely conclude that Trump properly invoked the Fifth Amendment.
A court has to determine whether the witness has a reasonable basis to fear danger from giving answers or is “clearly mistaken“ about the potential consequences of testifying. The Supreme Court has also suggested that the true test is “whether the claimant is confronted by substantial and ‘real,’ and not merely trifling or imaginary, hazards of incrimination.”
And a court would almost surely conclude that Trump properly invoked the Fifth Amendment, because this isn’t a case in which a witness has an imaginary or generalized concern that providing information to the attorney general could be incriminating. Trump has a real and substantial fear of prosecution, because he, his companies and his family have been under investigation for years and are still exposed to criminal prosecution.
That’s not “witch hunt” talk. Trump has been investigated criminally and civilly, by state and federal authorities, for years — the Mueller investigation, two impeachment trials and even this week’s execution of a search warrant at Mar-a-Lago by the FBI. His apprehension is real. It’s not contrived — even if it benefits him to avoid answering questions. That would be the likely conclusion if there were any challenges to his assertions of the Fifth Amendment.
That’s why Trump should have asserted the Fifth Amendment in his deposition testimony. It’s why his attorneys surely advised him to do so. If it compromises him in defending against the attorney general’s civil case, then so be it. He probably realizes he has to live with the civil consequences. The problem is that the outcome of the attorney general’s investigation could lead to criminal proceedings, with or without Trump’s silence. But for now, that must be deemed an acceptable loss.
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Another common risk of invoking the Fifth is that it perks up the ears of law enforcement, who might decide to initiate an investigation. That’s not possible here: The ears of state and federal authorities have been perked up for years now.
Declining to answer questions can’t possibly put Trump on anyone’s radar any more than he already is. It’s better for him to have left everyone guessing forever about what he was protecting than to have opened his mouth and left no doubt.