Donald Trump hasn’t had the easiest month, with both the FBI raiding his Mar-a-Lago residence and a New York deposition.
The hearing in New York centers on Trump’s tax affairs and valuations of Trump Organization assets.
Reports from the hearing said Trump argued the Fifth Amendment more than 440 times.
Trump, in a statement, said, “I once asked, ‘If you’re innocent, why are you accepting the Fifth Amendment? Now I know the answer to that question.”
“When your family, your business, and everyone in your orbit have become the targets of an unfounded, politically motivated witch hunt backed by lawyers, prosecutors, and the fake media, you have no choice,” he said. said Trump.
“As a result, on the advice of my attorney and for all of the above reasons, I have declined to answer questions about the rights and privileges afforded to every citizen under the Constitution of the United States,” he said. -he adds.
However, the circumstances in which Trump chose to use the Fifth are more complex than a simple “no comment” statement in a criminal case.
To find out what it all means, Newsweek investigated Trump’s past comments on the amendment, his potential reasoning for the apparent U-turn and what it might mean for future hearings.
What we know
Trump is rather coy in his statement, implying that in his past comments he simply questioned the reasons for taking the fifth. In fact, he openly criticized Hillary Clinton aides during the 2016 presidential campaign for intervening on the Fifth in the investigation into his use of a private email server.
“So there’s five people taking the Fifth Amendment, like you see in the crowd, right? You see the crowd taking the Fifth. If you’re innocent, why are you taking the Fifth Amendment? ?” Trump asked the crowd rhetorically at a rally in Iowa in September 2016.
Even though Trump admitted his earlier comments may have been reckless, critics on social media were quick to point out the apparent hypocrisy.
There are a few things to unpack here. First, Trump made a false equivocation by comparing the Hillary Clinton email investigation alongside “the mob.” Although the investigation was led by the FBI, it considered whether criminal charges could be sought.
The comparison with the mob implied, presumably, that Clinton was under criminal investigation.
On July 5, 2016, then-FBI Director James Comey released a statement saying that the FBI “cannot find any cases that would warrant bringing criminal charges on these facts” adding “we urge justice our view that no charge is appropriate in this case”. Case.”
That being said, comments on Twitter about Trump’s use of the Fifth in New York also don’t make distinctions about the nature of the audience.
The civil case, led by New York District Attorney Letitia James, investigates the valuation of Trump’s assets and whether the former president’s company, the Trump Organization, misrepresented reported valuations of some of its real estate assets for financial purposes, including better terms. on loans and insurance, as well as tax benefits.
Trump has strongly denied any wrongdoing.
While the principle of the Fifth Amendment remains the same whether in a criminal or civil case, the reasons for doing so are more nuanced, which has not been explained by Trump’s social media critics.
To assess this in more detail, Newsweek spoke with several jurists who are experts in constitutional law and in criminal and civil litigation to find out more.
Professor Erwin Chemerinsky, Dean of Berkeley Law, said Newsweek: “A person has the right not to answer questions, in a criminal or civil matter, that could lead to statements that could give rise to criminal liability.
“In a criminal case, no adverse inference can be drawn from the invocation of the privilege against self-incrimination,” he added.
“In a civil case, an adverse inference may be drawn from the invocation of privilege.”
Adverse inference is a legal term, which effectively means that when the plaintiffs try to present evidence on a point essential to their case, and cannot do so because the document was destroyed by the defendant, the jury can infer that the evidence would have been against the defendant and adopt the plaintiff’s reasonable interpretation of what the document would have said.
This was supported by Professor Katherine J Florey of UC Davis Law School, who said the consequences of the fifth can have a more negative effect on the outcome of a civil case.
“In the criminal setting, juries are not permitted to draw an adverse inference from a defendant’s decision to invoke the Fifth, but in certain circumstances they may be permitted to do so in civil trials,” said Professor Florey.
“It is also true that where a defendant in a civil suit invokes the Fifth, he will generally be barred from offering further evidence and/or testimony on the matter on which he declined to answer questions. The idea is to prevent defendants from selectively disclosing only information that helps them.
“In short, relying on the Fifth in a civil proceeding can have adverse effects in that proceeding, allowing an adverse inference and preventing the defendant from presenting potentially useful evidence.
“On the other hand, it may be the right choice for a defendant who has a strong fear of criminal prosecution.”
So while pleading the Fifth in the deposition may prevent Trump from providing further evidence later that could support his case, the prospect of criminal liability could loom.
Jimmy Gurule, a law professor at the University of Notre Dame, added that anything Trump said during his deposition “could be used against him in a criminal trial for charges related to allegations that he unlawfully inflated the value of his real estate properties in New York.
“If proven, Trump could be charged and convicted of tax evasion, as well as wire fraud and mail fraud,” Professor Gurule said.
“Secondly, Trump is concerned that leaking prejudicial information during his deposition could be used against him to prove civil lawsuits. For example, his deposition testimony could be used to prove that he ‘knowingly’ inflated the value of his real estate to avoid paying taxes.
“Finally, Trump is likely concerned that if he testified falsely during his deposition, he could expose himself to charges of perjury.”
The possibility of his tax affairs being exposed, or that Trump might end up saying something wrong, may have given him enough reason to remain silent during the deposition.
What we don’t know
Details of the Wednesday, August 10, 2022 hearing have not been disclosed.
Trump has been reported to plead the Fifth Amendment more than 440 times, according to an NBC News source, who claimed knowledge of the deposition. Newsweek was unable to independently verify this.
Trump’s attorney, Ron Feschetti, said the only question he answered was his name. A spokesperson for Letitia James’ office confirmed that the former president had taken the Fifth.
“Attorney General Letitia James participated in the deposition during which Mr. Trump invoked his Fifth Amendment right against self-incrimination,” James’ statement read.
“Attorney General James will pursue the facts and the law wherever they may lead. Our investigation continues.”
Some commentators have also speculated that James could expand his investigation to bring criminal charges in another Trump case, led by Manhattan District Attorney Alvin Bragg, who ultimately decided not to charge the former president. While that remains a possibility, there is no evidence so far that she will.
Finally, while we can speculate on Trump’s motivation for pleading the Fifth, that too is an unknown.
Trump has been openly hostile towards Attorney General James and believes the investigation is politically motivated, it’s part of a larger “witch hunt” targeting him and his allies.
Newsweek has contacted Donald Trump for comment.