Trump’s dilemma on pleading the Fifth

The big news Thursday was that a judge ruled that former president Donald Trump and two of his children must submit to depositions in a civil probe into the family’s business practices. Pending a planned appeal, that sets the stage for each of them to answer questions under oath in the next three weeks. That’s a very unhelpful development for the Trumps, given that they also face a criminal investigation involving much the same subjects.

But beyond that, there’s what Trump’s lawyer said about what those depositions might well entail: pleading the Fifth.

Somewhat undersold in the coverage of the judge’s decision Thursday was Trump lawyer Ronald Fischetti telegraphing that Trump would indeed invoke his Fifth Amendment right against self-incrimination to avoid answering questions. Fischetti indicated that Trump would do so if he wasn’t granted immunity from the separate criminal probe — something which isn’t going to happen.

“If [New York Attorney General Letitia James] wants sworn testimony from my client, he’s entitled to immunity,” Fischetti said. “He gets immunity for what he says, or he says nothing.”

But Fischetti argued that it would be a regrettable position to put his client in.

“If he goes in and follows my advice, which will be you cannot answer these questions without … immunity, because that’s what the law provides, and take the Fifth Amendment, that’ll be on every front page in the newspaper in the world,” Fischetti said. “And how can I possibly pick a jury in that case?”

Why would it be a regrettable position? Well, in part because no less than Trump himself has said that pleading the Fifth implies guilt. “The mob takes the Fifth,” Trump said when Hillary Clinton aides did so. “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!”

But also, pleading the Fifth isn’t such a simple matter in civil cases. 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.

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 puts Trump somewhat between a rock and a hard place. Given the concurrent criminal and civil investigations, it seems rather obvious 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 mere perception 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.