“Taking the Fifth“ has its risks

We normally associate “taking the Fifth” with a criminal case. Refusing to testify or answer questions where you are a criminal defendant cannot be used against you by the jury. This is your constitutional right against self-incrimination. 

In civil cases, the impact of refusing to testify is more complicated. Consider what happened today in New York. 

Donald Trump appeared this morning for questioning under oath in New York’s continuing investigation into his business practices. He refused to answer questions, citing his Fifth Amendment rights. 

Although he certainly had the right to refuse to answer, that refusal may come back to bite him. In a CIVIL case, a jury may consider the refusal to testify or answer questions as evidence of wrongdoing.  This is especially true where there is independent evidence of the facts at issue. 

Trump’s argument against testifying today is at least partially based on the fact that he is currently also under criminal investigation. His fear is that his statements under oath in the civil case could be used against him in a criminal case. When he previously raised that argument in order to delay the civil investigation, the New York courts rejected it. 

Trump’s failure to succeed in what are his typical delaying tactics have now placed him in a quandary. If he does not testify in the civil matter, the jury could later use that silence to find him liable for significant money damages. If he does testify in the civil case, that testimony might damage his defense in a criminal matter. 

In spite of what has the potential of being a massive financial judgment against him, Trump really cannot afford to testify in the civil case. 

In my summation before the jury, I would note Trump’s own statement at an Iowa rally in 2017: "You see the mob takes the Fifth. If you're innocent, why are you taking the Fifth Amendment?" 

His attorney would respond with his statement posted today on his social media site: “I once asked, 'If you're innocent, why are you taking the Fifth Amendment?' Now I know the answer to that question. I declined to answer the questions under the rights and privileges afforded to every citizen under the United States Constitution." 

My rebuttal then would be short and sweet. “It is clear that the defendant feels comfortable taking completely opposite positions when it suits him. As such, he has no credibility.”

Why Stopping a Subpoena Can Be a Big Thing

The State of New York has sued the Trump Organization and Trump family members individually as part of investigation into several questionable financial dealings. Oversimplified, the suit suggests that the defendants carried at least two sets of financial books. One set of books purportedly inflated property values for purposes of obtaining financing. Another one deflated values for tax purposes. 

This is a civil suit that seeks financial damages, unlike a criminal suit that might result in jail time. 

New York issued subpoenas to Trump family members to testify under oath in a deposition. Today’s hearing was to hear Trumps’ objections to these subpoenas. The court denied Trumps’ objections and ordered the family members to appear for depositions within a few weeks’ time. The order will certainly be appealed. 

One may ask why this is such a big deal. After all, Eric Trump has had his deposition taken previously in this case and “pleaded the fifth” more than 500 times. 

As anyone who has taken a Government class will recall, you are never forced to testify against yourself. You are completely protected from incriminating yourself. The effect of refusing to testify (or answer questions), however, is markedly different in criminal and civil cases. 

In a criminal case, the refusal to testify may not be used against you. Thus, a jury must disregard your willingness or unwillingness to testify in determining your guilt or innocence. 

In a civil case, you retain the right to refuse to answer questions or testify. However, the jury make take that into account in deciding the case. In other words, a jury could infer bad intent if the Trumps were to refuse to answer questions. 

Donald Trump has repeatedly said publicly that people who “take the fifth” or refuse to testify are likely guilty of charges against them. The State of New York will undoubtedly introduce those statements into evidence at the eventual civil trial if testimony is refused. 

That is why it was so important for the Trumps to win on the subpoena motion. Having lost, they are now facing a true quandary. Do they testify and subject themselves to explaining financial discrepancies (and possible perjury) or do they remain silent and accept the consequences of that inference? 

The answer to that question has taken on even greater weight this week when their accounting firm stated in a letter that financial statements over the last ten years are unreliable. In the same letter, the Trump Organization was fired as a client due to a “conflict of interest.” 

In this context, “conflict of interest” means that the accounting firm believes that their interests and that of the Trump Organization are in conflict. The Trump Organization was, to use a common phrase, thrown under the bus.