Donald Trump thought he was smart to take the Fifth Amendment when questioned last week, and he probably was if he's facing a criminal trial. But he could be facing civil action also, and in a civil trial the fact that he took the Fifth could come back to bite him on the butt.
Here's how Jessica Levinson describes it in an op-ed for MSNBC.com:
This week, in addition to having his private residence searched by the Federal Bureau of Investigation, former President Donald Trump was deposed in an investigation by the New York Attorney General’s office. There he apparently didn’t say much other than that he was asserting his Fifth Amendment right against self-incrimination. And here is what you should know.
The Fifth Amendment allows you, me and Trump to refuse to answer questions if there is a genuine risk that we could face criminal prosecution based on what we say. But, and this is a big one, the Fifth Amendment does not protect us from a jury in a federal civil case judging us for staying silent and invoking our Fifth Amendment rights.
The jury could be allowed to consider whether Trump asserted his right against self-incrimination because he has something to hide. Specifically, the jury could consider why Trump thinks he might face criminal prosecution for answering specific questions about his businesses’ practices and whether he signed off on fraudulent financial documents.
New York Attorney General Letitia James is investigating the Trump Organization, and apparently some of its members, for potential financial misconduct, looking into whether the Trump Organization fraudulently inflated the value of properties to get larger loans and more favorable tax treatment, in the form of deductions, than it deserved. James has stated in court filings that her office “uncovered substantial evidence establishing numerous misrepresentations.”
When you’re looking into a large corporation and investigating potential fraud against the Internal Revenue Service, banks and lenders, chances are you want to hear from its founder or leader. This is why James has sought to depose Trump himself.
Trump almost always has a lot to say, particularly when he is being investigated. His go-to attack of anyone investigating him is to accuse them of engaging in a political witch hunt. This investigation has been no different. But, after months of Trump’s delays, once he had to sit, under oath, for a deposition, he chose to invoke his Fifth Amendment right against self-incrimination. It is not only OK for us to judge him for that in the court of public opinion, it is OK, in the right circumstances, for a jury in a federal civil case to judge him for that in an actual court.
Every person living in this country can avail themselves of the rights and protections offered by the Constitution, including the Fifth Amendment. And every other person living in this country can assess that decision. During the 2016 campaign, Trump famously said, “You see the mob takes the Fifth. If you’re innocent, why are you taking the Fifth Amendment?” There is a legal doctrine embodied in a latin phrase - res ipsa loquitur. It means the thing speaks for itself. Here, the hypocrisy speaks for itself.
If Trump were to be sued in a federal case for civil wrongdoing related to the Trump Organization’s financial activities in an actual court room, the jury could be allowed to infer wrongdoing by the person who invoked his or her Fifth Amendment rights. In 1976, the Supreme Court concluded 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.” (Note that there are legal limits to when and how this negative inference can be made.)
Trump faces legal repercussions for his conduct regarding Jan. 6, 2021, apparently taking records out of the White House, the pressure campaign he exerted on officials in Georgia to overturn the election and his business practices. We do not know whether he will face federal or state criminal charges for any of his behavior. It simultaneously seems inconceivable that he won’t, based just on information that is already public, and inconceivable that he will because there is no precedent for this.
We do not know if the New York AG will file a federal civil case against Trump or the Trump Organization for financial wrongdoing. His decision to stay silent, which is his right, may prevent James from obtaining the evidence she needs to move forward.
But we do know that if Trump does face a civil suit in federal court, the law could allow the jury to form a negative opinion of his decision to invoke his right against self-incrimination and remain silent in the face of a serious investigation into financial fraud.