The legal world is blowing up about Michael Cohen‘s promise to invoke his Fifth Amendment rights if questioned in the Stormy Daniels civil case. Among the pithy comments was this one, which not surprisingly came straight from Stormy Daniels attorney Michael Avenatti:
This is a stunning development. Never before in our nation’s history has the attorney for the sitting President invoked the 5th Amend in connection with issues surrounding the President. It is esp. stunning seeing as MC served as the “fixer” for Mr. Trump for over 10 yrs. #basta
— Michael Avenatti (@MichaelAvenatti) April 25, 2018
To no one’s surprise, a lot of people also brought up a now-infamous quote from President Trump himself:
“The mob takes the Fifth. If you’re innocent, why are you taking the Fifth Amendment?”
Trump was referring to Hillary Clinton staffers who asserted the Fifth in response to questions about Clinton’s private email server. Trump appears to have been referring to a civil case, where the issue is not “innocence,” as he put it, but rather liability. He therefore has the law somewhat backwards, but not entirely. As to civil trials, Trump has the law right, and it might bite Michael Cohen in the butt in a huge way. Here is why.
In criminal court, witnesses can plead the Fifth. (Remember Mark Fuhrman? It’s worth watching again for old time’s sake.) Witnesses don’t have to utter anything which could later be used against them in a criminal proceeding. The same goes for criminal defendants and suspects. Attached to the privilege itself is another protection: no one can tell jurors at trial to draw a negative inference from someone’s decision to invoke the Fifth. That’s the clear law of Griffin v. California (1965). In most trials, jurors are instructed they cannot draw an inference among themselves as to why a defendant has chosen to remain silent. (In at least one state, the defendant decides if jurors receive that instruction.)
Civil cases are different. Individuals embroiled in civil litigation can plead the Fifth to prevent anything they say from being used against them in a separate criminal case. However, the civil jury can draw negative inferences from a litigant’s silence. That is the law of Baxter v. Palmigiano (1976), where the Supreme Court noted:
“[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.”
There are decisions, however, which limit the Baxter court, such as this one in the 9th Circuit where the Stormy Daniels litigation is occurring. California also has an evidence code which flat-out prevents jurors from considering the assertion of a privilege in deliberations, regardless of the Baxter rule. (States can provide individuals with greater protection than the federal constitution requires.)
So, in the Stormy Daniels case, which rule applies? California’s or Baxter’s? Now we’re neck-deep in the so-called Erie Doctrine. That’s a complicated way of sorting out whether state or federal rules apply in a federal court case which is only in federal court because the parties live in different states. It’s convoluted, but the bottom line is that here, because Baxter interpreted the constitution, the Baxter rule probably will supersede state law. The California prohibition on drawing inferences from 5th Amendment privileges probably won’t apply. (The defendants might eventually regret that they removed the case to federal court for this very reason.) Any limitations on Baxter as applied in the 9th Circuit would apply.
As such, if the Daniels case goes to trial, jurors will probably be told they can assume Cohen’s silence is a sign he did something wrong. Therefore, they can use his silence to hold him liable for whatever wrong they might think he committed. Trump had the law right as far as civil matters go. Michael Avenatti is probably salivating at the thought of using Trump’s quote against Cohen in front of a jury.
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