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Trump pleading the Fifth isn’t just about hypocrisy

The Post’s Jonathan O’Connell explains what happens next for the Trump family in the New York Attorney General Letitia James's civil investigation. (Video: Mahlia Posey/The Washington Post, Photo: Jabin Botsford/The Washington Post)

This post, originally from February, has been updated with the news of Trump pleading the Fifth.

The former president who has repeatedly said that pleading the Fifth Amendment implied guilt is now pleading the Fifth. Donald Trump in a statement Wednesday signaled he will register the plea to avoid testifying in a civil investigation run by New York Attorney General Letitia James (D).

But the apparent hypocrisy in that isn’t the only key point here.

On Aug. 10, former president Donald Trump invoked the Fifth Amendment in a deposition related to a civil case. (Video: The Washington Post)

This move had been telegraphed as far back as February, when Trump’s lawyer suggested Trump would do this if he wasn’t given immunity. And in his statement on the day he was due to be deposed, Trump acknowledged his convenient evolution on the subject.

“I once asked, ‘If you’re innocent, why are you taking the Fifth Amendment?'” he said. “Now I know the answer to that question.” He said he has decided to take the step because he has come to understand that prosecutors are morally and ethically compromised and this is a “witch hunt.”

Trump has in the past made his previous feelings about pleading the Fifth abundantly clear.

“The mob takes the Fifth,” Trump said when Hillary Clinton aides did so in 2016. “If you’re innocent, why are you taking the Fifth Amendment?” He added in 2014: “If you are innocent, do not remain silent. You look guilty as hell!”

Trump said these things despite having already invoked the Fifth Amendment in his divorce proceedings in 1990.

But beyond that, there’s the fact that pleading the Fifth isn’t such a simple matter in civil cases like the one Trump faces. While in criminal cases, pleading the Fifth can’t be used against you, the rules are different in this instance.

Eugene Volokh offered a useful primer on this for The Washington Post back in 2015. Here are some of the highlights:

What happens if you invoke the privilege against self-incrimination in a civil case?
1. You can do it, and you won’t be held in contempt for failing to testify. Though the provision says that no person “shall be compelled in any criminal case to be a witness against himself,” the Supreme Court has made clear that this extends to compelling a person to testify in a civil case, when that compelled testimony could later be used against him in a criminal case.
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2. But a decision to take the Fifth may be used against a party in a civil case (if the party is the witness who refuses to testify, or is closely enough connected to the witness). In a criminal case, the judge and the prosecutor may not tell a jury “that it may draw an inference of guilt from a defendant’s failure to testify about facts relevant to his case.” But that’s not so in a civil case.

The Supreme Court case cited for Point No. 2 is 1976′s Baxter v. Palmigiano. In it, the court stated that “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.”

That’s the federal standard. Many states have more stringent rules against drawing adverse inferences in state-level civil cases. But New York, where the Trump civil case is playing out, does not.

What might that adverse inference be? That’s largely up to the judge, as the New York State Bar Association summarized in 2020:

The Second Circuit has also made clear that there are no “hard and fast rule[s]” governing when and how an adverse inference should be applied in the wake of a Fifth Amendment invocation, and that “how [the court] should react to any motion precipitated by a litigant’s assertion of the Fifth Amendment in a civil proceeding … necessarily depends on the precise facts and circumstances of each case.” Thus, the Second Circuit has held that devising an appropriate remedy for a Fifth Amendment assertion should be left to the discretion of the trial court.”

What’s clear is that the confluence of circumstances put Trump somewhat between a rock and a hard place. Given the concurrent criminal and civil investigations he’s involved in New York, it seemed rather obvious and probably advisable that he would plead the Fifth (notwithstanding his past commentary on such things) to avoid divulging potentially revealing information that could be used against him in the former case. Indeed, defendants often concede in such cases that an indictment is imminent so the civil case can be delayed. But declining to testify in a civil case can hurt his cause there — even beyond the perception (oft promoted by Trump himself) that he’s being evasive.

As Max Kennerly put it, pleading the Fifth in a federal civil case “is never helpful, is rarely harmless, and is typically very damaging.”

But while the concurrent investigations put Trump in a bad spot, the judge took a quite-different view of how they work in concert with one another. Judge Arthur Engoron said those under investigation “cannot use the Fifth Amendment as both a sword and a shield — a shield against questions and a sword against the investigation itself.”

Engoron added that Trump and his children “will have the right to refuse to answer any questions that they claim might incriminate them, and that refusal may not be commented on or used against them in a criminal prosecution. However, there is no unfairness in allowing the jurors in a civil case to know these refusals and to draw their own conclusions.”

And indeed, a former version of Trump would seem to agree that’s quite fair.

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