Former President Trump’s announcement that he will assert his Fifth Amendment privilege to avoid answering questions in New York attorney general Letitia James’s investigation of the Trump organization is significant.
James’s probe is civil in nature; it’s not a criminal case. The difference? In a criminal case, the Supreme Court has held that no negative inference may be drawn against a defendant who refuses to answer questions based on the privilege against self-incrimination. As Justice Scalia explained while dissenting in United States v. Mitchell (1999), this modern interpretation cuts against not only the original meaning of the privilege but also common sense (“If I ask my son whether he saw a movie I had forbidden him to watch, and he remains silent, the import of his silence is clear.”) Nevertheless, if a criminal defendant declines to testify, the jury may not deduce that if he had an innocent explanation that would rebut the charges, he would surely have provided it.
On the contrary, common sense reigns in civil cases. Yes, a party still has his constitutional right not to provide evidence that could be used against him — one may take the Fifth to avoid disclosing potentially incriminating evidence. Nevertheless, the fact finder is permitted to draw a negative inference from the party’s refusal to answer questions.
The New York state civil matter is an investigation of the Trump organization’s business practices. So, contrary to the implications in a criminal case, taking the Fifth is not cost-free. With respect to any question Trump refuses to answer — and he is apparently declining to answer all questions — the fact finder may infer that if he testified truthfully, his answers would have helped the state’s case.
When something is not cost-free, then our analysis has to be about costs and benefits — or, more accurately here, costs and worse costs. After consulting with his lawyers, former president Trump has decided that the damage he will sustain in the civil litigation by refusing to answer questions is not as bad as the damage he could sustain — not just in the civil litigation but in general — if he were to provide truthful testimony. That does not necessarily mean his truthful testimony would be incriminating, but it could very well mean that. And at a minimum, we can deduce that his testimony would not be helpful to his position.
There is no doubt that Trump is in a tough spot. When you are implicated in criminal investigation (and the search conducted at Mar-a-Lago Monday is clearly indicative of a criminal investigation, and may be relevant to multiple criminal probes), it becomes very risky to testify in a civil deposition because the statements made can be used against you in the criminal probes. This, naturally, gives the adverse lawyers in the civil case the incentive to ask questions they know may bear on the criminal case. But that’s the way it goes. You have to decide whether you’ll get hurt worse by answering or not answering.
Trump has decided he would get hurt worse by answering. Naturally, like most similarly situated investigative subjects, he is insisting that he is taking the Fifth on advice of counsel and because the government at every level is out to get him — as he put it today, “I have absolutely no choice because the current Administration and many prosecutors in this Country have lost all moral and ethical bounds of decency.”
Maybe. But when it gets down to brass tacks, it’s still a calculation of risk. Trump decided the greater risk would be testifying.