What does it mean to ‘plead the Fifth’?

NEW YORK (AP) — Former President Donald Trump appeared for questioning under oath on Wednesday as part of New York’s civil investigation into his business practices. But he quickly made it clear that he would not respond.

The ex-president released a statement saying he had done nothing wrong but was invoking Fifth Amendment protection against self-incrimination. It’s a constitutional right that enjoys high visibility in contexts ranging from Congress to TV police shows, but there are nuances. Here’s what it means – and doesn’t mean – to « plead (or ‘take’) the Fifth ».

WHAT IS « THE FIFTH »?

The Fifth Amendment to the United States Constitution establishes a number of procedural rights, including that no person « shall be compelled in a criminal case to give evidence against himself ».

In the most direct sense, this means that defendants do not have to give damning testimony in their own cases. But this also applies to non-criminal contexts.

WHAT IS THE MIND BEHIND THIS?

“It reflects many of our core values ​​and highest aspirations,” the Supreme Court wrote in 1964.

Among those ideals: to prevent people from being tortured into confessing or being drawn into a « cruel trilemma of self-incrimination, perjury or contempt » of court.

Several decades earlier, the court had also questioned the reliability of confessions made under duress.

THE AMENDMENT SPECIFICALLY REFERS TO CRIMINAL CASES. HOW CAN THIS APPLY TO A CIVILIAN INVESTIGATION?

Over time, Fifth Amendment protections have been understood to cover witnesses — not just defendants — in criminal and civil courts and other government settings. The Supreme Court has even ruled that Fifth Amendment rights protect the jobs of officials who were fired after refusing to testify in inquests unless they were granted immunity from prosecution.

The Fifth Amendment also underpins Miranda’s famous warning about the right to remain silent and have an attorney on hand during questioning in custody.

SO, ARE THERE ANY LIMITS?

By what has become the legal standard, the witness must face a real risk of criminal prosecution, said Paul Cassell, a criminal law professor at the University of Utah. This means prosecution for any charge in any US court.

There are sometimes disputes as to whether the right is invoked inappropriately. The questioning party can ask a judge to declare that someone should answer or face contempt of court and possible penalties.

But « the courts have generally thought they should give the benefit of the doubt to someone who could be criminally prosecuted, rather than forcing someone to testify and then being told, ‘Oops!’, » Cassell said. .

OKAY. CAN SOMEONE TAKING THE FIFTH DECIDE TO ANSWER SOME QUESTIONS BUT NOT OTHERS?

Yes, it’s not necessarily all or nothing. But even deciding to answer selectively could be risky: answering one question may allow the other party to argue that the witness cannot refuse to answer other related questions. Another concern: Seemingly safe questions could be intended to constitute evidence of an allegation that is not yet on the witness’s radar.

IF YOU INVOKE THE PROTECTION, DOES IT WORK AGAINST YOU?

Legally, it depends. In a criminal case, prosecutors cannot comment on a defendant’s refusal to testify, and a jury cannot be told that it is acceptable to regard the defendants’ silence as a sign of guilt. The Supreme Court has said that allowing this inference penalizes defendants who simply assert constitutional protection.

But in civil cases, jurors are generally allowed to remain silent against a defendant or witness.

Then there is the court of public opinion.

« Does it look bad? » For the general public, yes,” says Lenese Herbert, a criminal law professor at Howard University. « But that’s just the result of poor civic education. »

The former federal prosecutor often reminds her students that while jurors may want to hear the defendant’s side, it’s a defense attorney’s job to make sure the jury understands the client has the right not to take a position.

CAN WE GO BACK TO TRUMP? HE IS INTERVIEWED IN A CIVILIAN INQUIRY. CAN HE CLAIM THERE IS A POTENTIAL OF CRIMINAL PROSECUTION?

Indeed, her attorneys have previously claimed that New York Attorney General Letitia James’ civil investigation is essentially a fact-finding mission for Manhattan District Attorney Alvin Bragg’s parallel criminal investigation.

James said his investigation found evidence that the businessman-turned-politician’s company, called the Trump Organization, raised the value of real estate assets to secure loans, insurance and tax breaks for land donations. . Trump denied the allegations and the Republican called the investigation a political « witch hunt » by Democratic officials.

Meanwhile, other fruits of James’s investigation led the prosecutor’s office to bring criminal tax evasion charges against the Trump Organization and its chief financial officer. The defendants have pleaded not guilty in the case, which involves informal compensation claims.

WHAT DID TRUMP SAY ABOUT ALL THIS?

In the past, Trump has repeatedly suggested that only people with something to hide avail themselves of the protection against self-incrimination. He once said that « the mob takes the Fifth ».

But on Wednesday he said he had no choice but to do so.

« I once asked, ‘If you’re innocent, why are you taking the Fifth Amendment?’ Now I know the answer to that question,” he said in his statement, calling the investigation a “vindictive and self-serving fishing expedition.”

« The United States Constitution exists for this very purpose, and I will use it to the fullest to defend against this malicious attack. »

Trump’s lawyer, Ronald Fischetti, had said he would advise Trump to take the fifth unless he had legal immunity for his answers, although Fischetti complained that the publicity surrounding such a choice could now hurt Trump’s defense if there’s a criminal charge down the road.

« How can I possibly choose a jury in this case? » Fischetti said as he tried unsuccessfully to block Wednesday’s testimony.

Three of Trump’s adult children – Donald Jr., Ivanka and Eric – have already been interviewed. Eric Trump invoked the Fifth Amendment more than 500 times during his 2020 deposition, according to a court filing. Donald Jr. and Ivanka reportedly made their depositions recently, and it’s not yet known if they took the Fifth.