NEW YORK (AP) — Donald Trump and two of his children, Donald Jr. and Ivanka, will be questioned under oath in the coming days in New York’s civil investigation into their business practices. But will the Trumps respond?
The former president’s lawyer has indicated that he will advise Trump to keep quiet and invoke Fifth Amendment protection against self-incrimination. It’s a constitutional right that receives high-profile exposure in venues ranging from Congress to TV crime shows, but there are nuances. Here’s what “beseech (or ‘take’) the Fifth” means, and does not mean.
WHAT IS ‘THE FIFTH’?
The Fifth Amendment to the US Constitution establishes a number of rights related to legal proceedings, including that no one “shall be compelled in any criminal case to testify against himself.”
In the most direct sense, that means criminal defendants do not have to give damning testimony in their own cases. But it has also come to be applied in non-criminal contexts.
WHAT IS THE THINKING BEHIND?
“It reflects many of our core values and noblest aspirations,” the Supreme Court wrote in 1964.
Among those ideals: prevent people from being tortured to make them confess or being shod into a “cruel trilemma of self-accusation, perjury or contempt” of court.
Many decades earlier, the court had also questioned the reliability of confessions made under duress.
THE AMENDMENT REFERS SPECIFICALLY TO CRIMINAL CASES. HOW CAN YOU APPLY FOR A CIVIL INVESTIGATION?
Over time, it has been understood that Fifth Amendment protections cover witnesses, not just defendants, in criminal and civil courts and other government settings. The Supreme Court has even held that Fifth Amendment rights protect the jobs of public employees who were fired after refusing to testify in investigations unless granted immunity from prosecution.
The Fifth Amendment also supports the famous miranda warning on the right to remain silent and have a lawyer on hand while being questioned in police custody.
SO, ARE THERE ANY LIMITATIONS?
Under what has become the legal standard, the witness must face a real risk of criminal prosecution, said Paul Cassell, a professor of criminal law at the University of Utah. That means prosecution for any charge in any court in the United States.
Sometimes there are disputes as to whether the law is being invoked inappropriately. The questioning side can ask a judge to declare that someone should answer or face contempt of court and possible penalties.
But “courts have generally thought they should give someone who could be criminally prosecuted the benefit of the doubt, rather than force someone to testify and then learn, ‘Whoa!'” Cassell said.
IT’S OKAY. CAN SOMEONE DOING THE FIFTH DECIDE TO ANSWER SOME QUESTIONS, BUT NOT OTHERS?
Yes, it’s not necessarily all or nothing. But even deciding to respond 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: The seemingly safe questions could be meant to generate evidence about an allegation that’s not yet on the witness’s radar.
HMMMM. IF YOU INVOKE PROTECTION, DOES IT WORK AGAINST YOU?
Legally, it depends. In a criminal case, prosecutors cannot comment on a defendant’s refusal to testify, and the jury cannot be advised that it is okay to take defendants’ silence as a sign of guilt. The Supreme Court has said that allowing such an inference penalizes defendants for simply availing themselves of constitutional protection.
But in civil cases, juries can generally keep silent against a defendant or witness.
Then there is the court of public opinion.
“It looks bad? In the opinion of the general public, yes,” says Lenese Herbert, a Howard University criminal law professor. “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 of the story, the defense attorney’s job is to make sure the jury understands that the client has a right not to take the trial. dais.
CAN WE GO BACK TO TRUMP? HE IS BEING INTERROGATED IN A CIVIL INVESTIGATION. CAN YOU AFFIRM THAT THERE IS POTENTIAL FOR CRIMINAL PROSECUTION?
In fact, his lawyers have already claimed that New York Attorney General Letitia James’s civil investigation is essentially a fact-finding mission for Manhattan District Attorney Alvin Bragg’s parallel criminal investigation.
James has said his investigation found evidence that the company inflated the value of real estate assets to obtain loans, insurance and tax breaks for land donations. Trump has denied the allegations, and the Republican has criticized the investigation as a political “witch hunt” by Democratic officials.
Meanwhile, other fruits of the James investigation prompted the DA’s office to bring criminal charges of tax fraud against the businessman-turned-politician’s company, called the Trump Organization, and its chief financial officer. The defendants have pleaded not guilty in that case, which involves unofficial compensation claims.
WHAT HAS THE TRUMP TEAM SAID ABOUT ALL THIS?
Trump’s attorney, Ronald Fischetti, has said that unless legal immunity is granted for the former president’s upcoming deposition — a term for pre-trial questioning under oath outside of court — he would advise invoking the Fifth Amendment “because that’s what it is.” established by law”. Still, he maintained that the publicity surrounding such an election now could hurt Trump’s defense if there is a future criminal charge.
“How can I pick a jury in that case?” Fischetti said while trying unsuccessfully to block the statement.
Trump himself, years ago, repeatedly suggested that only people with something to hide avail themselves of the protection.
“The mob takes the Fifth,” he once declared.