At an Iowa campaign stop in 2016, Donald Trump provided some legal advice to actor Bill Cosby who had recently invoked his rights under the Fifth Amendment in refusing to testify concerning charges of sexual assault. “The mob takes the Fifth,” said Trump. “If you are innocent, do not remain silent, You look guilty as hell!”
It’s unclear whether Trump also shared this advice to his son Eric, who hoisted the Fifth Amendment “hundreds of times” in refusing to testify about the Trump Organization’s finances. Or to would-be attorney general Jeffery Clark when asked to testify about events leading up to Jan. 6. Or to Roger Stone, who hauled up the Fifth in response to every question from the House Select Committee.
Jeffery Clark. Roger Stone. Eric … Trump did say that the mob takes the Fifth.
In any case, the question now is: Will Donald Trump take the Fifth? After a judge ruled that Trump has to testify on his organization’s finances as part of an investigation being conducted by New York Attorney General Letitia James, Trump has a few choices. He can appeal that ruling (most likely). He can invoke his rights not to testify under the Fifth Amendment (somewhat likely). He can testify fully and truthfully (extremely unlikely).
But if Trump wraps himself in the Fifth Amendment, how does what he said to Cosby not apply equally well to Trump? Won’t it make him look “guilty as hell”?
After Judge Arthur Engoron’s ruling on Thursday, Trump’s legal team was open about the possible result, as ABC reported.
“If she wants sworn testimony from my client,” said Trump’s latest criminal defense lawyer Ronald Fischetti, “he’s entitled to immunity. He gets immunity for what he says, or he says nothing,”
This is a case about the corrupt finances of the Trump Organization. The Trump Organization is not the property of stockholders, or of partners. It is owned 100% by Donald J. Trump. Giving Trump immunity in exchange for his testimony would be like giving Jeffery Dahmer immunity to find out where he bought his spices. This is not happening.
But, says Trump’s criminal attorney, “If [Trump] goes in and follows my advice, which will be you cannot answer these questions without ... immunity because that’s what the law provides, and take the Fifth Amendment, that’ll be on every front page in the newspaper in the world. And how can I possibly pick a jury in that case?”
Yeah. That’s a problem. How, asks Fischetti, can Trump invoke his right to refuse to testify on the grounds that it might incriminate him without potential jurors thinking that makes him look guilty?
The answer is simple enough: He can’t. This isn’t some unique burden exclusive to Trump; it’s one that faces anyone who invokes their Fifth Amendment right. Refusing to testify on the grounds that it can make you seem guilty ... makes you seem guilty. Wait, it makes you look “guilty as hell!” There is no getting past that. Which is why, outside Trump’s circle, where it seems to be the in fad, using this means of avoiding testimony is relatively rare.
In a criminal case, an attorney can’t expressly draw the jury’s attention to the fact that someone has invoked their Fifth Amendment rights, or try to get jurors to take any implications from that action. But that doesn’t mean that jurors will fail to notice, or that they won’t draw their own conclusions.
Invoking the Fifth may be less damaging than either giving false testimony that can be disproven in court, or giving truthful testimony that provides direct evidence of guilt. Still, it’s anything but invisible.
As The Washington Post reports, pleading the Fifth in a civil case has even more consequences:
“You can do it, and you won’t be held in contempt for failing to testify. … But a decision to take the Fifth may be used against a party in a civil case (if the party is the witness who refuses to testify, or is closely enough connected to the witness).”
In a civil case, the prosecuting attorney can point out that someone has pleaded the Fifth and can invite the jury to draw conclusions from that action. At the moment, the investigation into the Trump Organization is expected to generate a civil proceeding. Followed by a likely criminal proceeding. And the testimony in the first could be admissible in the second.
This, according to the Post, puts Trump between “a rock and a hard place.”
“Given the concurrent criminal and civil investigations, it seems rather obvious he would plead the Fifth (notwithstanding his past commentary on such things) to avoid divulging potentially revealing information that could be used against him in the former case. … But declining to testify in a civil case can hurt his cause there — even beyond the mere perception that he’s being evasive.”
Any move by Trump to take the Fifth, and those “hundreds of times” that Eric tagged out in that same way, can absolutely be mentioned to the jury in a civil proceeding. Civil is just a legal term, Donny. It doesn’t mean they have to be nice.
