Did Trump Make a Mistake by Pleading The 5th?

To plead the 5th or not to plead the 5th, that is the question for former President Donald Trump. His allies believe he should do it and do it often.

Trump declined to answer questions in a deposition by New York Attorney General Letitia James’ office. The AG’s office announced that it was considering filing a civil case against Trump’s business dealings. 

“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.

One of the risks involved in invoking the 5th Amendment is that it could draw more attention to the individual from law enforcement. They could begin more investigations. But Trump declining to answer couldn’t bring any more focus onto the former president than he already has. 

The president doesn’t need to believe he’s guilty of a crime to assert the 5th Amendment. He just needs to believe it could harm him if he answers the questions.

The Supreme Court clarified this privilege by asserting, “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 Supreme Court has also made it clear that the true test for using the 5th is, “whether the claimant is confronted by substantial and ‘real,’ and not merely trifling or imaginary, hazards of incrimination.”

Courts Likely to Conclude Trump Made Right Decision Invoking 5th Amendment

Every court proceeding would likely conclude that the former president properly invoked the 5th Amendment because for years Trump has had real and substantial fear of prosecution. He and his companies have been under investigation for years and they are still subject to criminal prosecution.

Trump has faced the Mueller investigation, two impeachment trials, and now the search warrant of his private residence in Mar-a-Lago by the FBI.

Here is what he said about his change of practice with the 5th Amendment, “I once asked, ‘If you’re innocent, why are you taking the Fifth Amendment?’ Now I know the answer to that question,” Trump said in a statement on Wednesday. “When your family, your company, and all the people in your orbit have become the targets of an unfounded, politically motivated Witch 

Hunt supported by lawyers, prosecutors, and the Fake News Media, you have no choice.”

Attorney General James will make the next move. Joshua Schiller, a partner at Boies Schiller Flexner LLP who has fought cases with the attorney general, said, “Now [James] can claim that, well, he pleads the Fifth, then he’s worried about potentially having some criminal liability and therefore her investigation is meritorious and she can proceed with bringing claims against him and proceed to trial. On the other hand, I imagine that [Trump] is going to say, ‘Well, I’m not going to answer any questions, because this is a kangaroo court, and no one would listen to me anyway.”

Legal experts would likely agree that Trump was right to plead the 5th even though he has spoken critically about those who use this privilege. With legal troubles continuing to mount, the former president is much better off silent.