Donald Trump and his family were ordered to testify in the New York Attorney General’s investigation into allegations of fraudulent financial conduct by Trump and the Trump Organization. Although Trump and his children will appear for their depositions, don’t expect them to say anything. The smart money is that they will assert the Fifth Amendment and refuse to answer any substantive questions.
“Taking the Fifth” has become a familiar moniker for all types of witnesses – gangsters, politicians, even lawyers and judges. Yes, in a civil trial a jury may draw an adverse inference against a party who takes the Fifth. And, combined with the substantive evidence, a verdict can be reached against that party resulting from the invocation of the privilege. Thus, there is a significant consequence for taking the Fifth in a courtroom setting. And why shouldn’t there be? A party should indeed have the benefit of the adverse party’s testimony in a civil case, and the party who refuses to testify should pay the price for that refusal, even if the asserting party is resting his silence on the fundamental constitutional right against self-incrimination, which would be fully protected if it were a criminal trial. That makes total sense!
Is there or should there be a difference in a civil trial? Maybe. Typically, when someone takes the Fifth in a proceeding of interest to the public, the man on the street draws an adverse inference against him, i.e., the person who asserts the Fifth is a “bad guy.” Why else would he take the Fifth? In fact, Donald Trump himself has publicly articulated this commonly-held view. “The mob takes the Fifth,” he said at a campaign rally in September 2017. “If you’re innocent, why are you taking the Fifth Amendment?” Ironically, Trump himself invoked the Fifth Amendment in 1990, during his bitter and public divorce from his late first wife, Ivana Trump. The real estate mogul took the Fifth to avoid answering questions about adultery, invoking the Fifth a total of 97 times in deposition questions that were mostly about “other women.” And many remember Senator Joe McCarthy pushing the envelope daily during the Army/McCarthy hearings in the early ’50s, actually compelling witnesses to publicly take the Fifth in order to incite the public to vilify them.
Now, though, the shoe is on the other foot – the Trump family itself is under the gun. Is the ex-president concerned? Probably not. His thinking on issues like this is quite malleable. He will simply say that he and his family have done nothing wrong, and that this is a political witch hunt, like so many other witch hunts against him, and they’ll refuse to play ball. Half the public won’t believe him, half will. And, as long as he has his half, he won’t really care what the rest think.
So, while Trump may be sui generis and thus not a particularly good model for this discussion his taking the Fifth does squarely raise the issue: Is it fair for the public to conclude that someone is a “bad person” simply because they take the Fifth Amendment? Is it reasonable or appropriate to make a negative assessment about someone who asserts a core constitutional right that has been a fundamental backstop against government overreaching since the dawn of the Republic? Put differently, does the right’s mere assertion imply badness or wrongdoing, however lawful it clearly may be for any individual to take that tack?
According to public opinion polling, invoking the Fifth Amendment is not necessarily an indication that someone is guilty. In a poll conducted after Trump’s legal team indicated the possibility of Trump pleading the Fifth in the Russia investigation, 51% of registered voters said that when someone invokes the Fifth Amendment, it does not usually mean they are guilty, while 36% said it usually does. 42% of Democrats said pleading the Fifth usually implies the person is guilty, compared to 31% of Republicans and 33% of independents who said the same.
Here’s the irony. Steve Bannon was convicted of contempt of Congress for refusing to even appear when he was subpoenaed by the U.S. House Select Committee investigating the Jan. 6 attack on the Capitol. Had he simply appeared and asserted the Fifth to every question asked or to not produce protected documents, that would have been the end of the matter — with no consequence to him other than the view that many would surely have as a result that he had, indeed, criminally participated in the riot. But he wanted to “stand tall” and not give an impression of weakness by relying on a constitutional right. He even says now, parenthetically, that if he has to go to jail, so be it!
We’re not fans of Bannon. But doesn’t it say something about how the public views decisions about someone taking the Fifth? In truth, the public has a perfect “right” to make that decision – but is it fair? In a day when so much of our conduct has been criminalized, and with people often taking the Fifth for noble reasons such as protecting their families or themselves from personal embarrassment or their affiliations with ostracized groups — is there anything “bad” about being a communist or belonging to the NAACP in Alabama? — any thoughtful criminal lawyer will almost always counsel her client to “take five.”
By way of example, as a young prosecutor we sought an interview with a witness. His lawyer, a true Brahmin of the bar with total credibility, told us that his client had done nothing wrong and that the interview would accomplish nothing for us. Still, he would decline. He, indeed, said that “if I were representing Jesus Christ himself nowadays, I would have him take the Fifth Amendment.” Quite a statement!
But isn’t there truth to what this lawyer said to us? Most thinking prosecutors today accept that almost every witness’s lawyer is totally justified in insisting on protection for a client’s interview by a prosecutor. If so, why should the public draw the seriously negative inference that it typically does when a witness in an investigatory proceeding takes the Fifth? Yes, Bannon had a reason to resist invoking the Fifth – he idealized himself in the martyr role as a Trump loyalist intent on fighting back against the House Select Committee. Most witnesses don’t have such motivation. They — and even more so their lawyers who advise them — simply don’t want to risk an overzealous prosecutor using an interview or testimony potentially out of context to make a case against them.
The contrast with Miranda during police interrogations is worth noting. Although police are able to get suspects to waive their Miranda rights in most cases, many suspects are advised by their lawyers not to speak to the police. Would anybody criticize the lawyer for giving this advice? Would anybody believe it’s bad advice, or that the suspect’s silence means he’s guilty?
Most witnesses simply want to protect themselves and their loved ones. Why should they have to pay the price of the public’s clamor against them for exercising a constitutional right? Shouldn’t the public be better educated about the limited meaning of one’s exercise of the constitutional right that should have no adverse consequences outside a courtroom setting? Yes, a hard-to-estimate but extremely significant number of those who take the Fifth probably have done something wrong that requires it. But what about the rest who assert it for reasons having absolutely nothing to do with being guilty? How often in common parlance do people say “I’ll take the Fifth” when they themselves have done nothing wrong, but simply don’t want to answer a question that is, for whatever reason, hard to deal with?
Joel Cohen, a former state and federal prosecutor, practices white collar criminal defense law as Senior Counsel at Stroock & Stroock & Lavan. He is the author of “Broken Scales: Reflections On Injustice” (ABA Publishing, 2017) and an adjunct professor at both Fordham and Cardozo Law Schools.
Bennett Gershman is a Professor of Law at the Elisabeth Haub School of Law at Pace University, a former prosecutor in the Manhattan District Attorney’s Office, and a Special Assistant Attorney General in New York State’s Anti-Corruption Office.
This is an opinion piece. The views expressed in this article are those of just the author.