“If you’re innocent, why are you taking the Fifth Amendment?” Donald Trump asked at a campaign rally in 2016. Five years later he sat in the office of New York’s attorney general and invoked his Fifth Amendment rights nearly 450 times, NBC originally reported. The only question he answered was “What is your name?”
Wednesday’s deposition with lawyers for Letitia James, attorney general of New York, was part of a civil probe into Trump’s business practices. For more than three years James’s office has scrutinized the Trump Organization to determine whether, under the direction of Trump, business assets were inflated and deflated to obtain financial benefits.
Trump says the whole thing is a political sham — James is using it to advance her career.
This is why, Trump says, he changed his mind on taking the Fifth Amendment. “When your family, your company, and all the people in your orbit have become the targets of an unfounded politically motivated Witch Hunt supported by lawyers, prosecutors, and the Fake News Media, you have no choice,” he said in a statement.
The Fifth Amendment has long been the haven of Americans accused of committing a crime. The popular TV series Law & Order memorialized it in every episode’s arrest scene, where a police officer tells the suspect he or she has the right to remain silent. But how much can it protect Americans from legal scrutiny?
It’s all Greek to me
The Fifth Amendment’s roots can be traced back to ancient Athens, where the concept of being judged by a jury of peers was first used. Today we call it a grand jury, which was first adopted in America by the New York General Assembly through the Charter of Liberties and Privileges of 1683.
The Fifth Amendment originally did not include the right to refuse to answer incriminating questions. It wasn’t until Boyd v. United States in 1886 when the Supreme Court decided that a witness had the right to remain silent.
In the case, E. A. Boyd & Sons allegedly imported glass without paying the duty that was required of customs at the time. A federal attorney ruled that Boyd & Sons should turn over the invoices for the glass, but Boyd argued that the order went against the Fourth and Fifth Amendments, relating to unreasonable searches, seizures of personal property and protection from self-incrimination. The case eventually made its way to the Supreme Court, who agreed with Boyd, ruling that the government did not have the right to obtain private property without the presence of a jury.
The Fifth Amendment is commonly referred to as the “right to remain silent,” because it protects a person suspected of a crime from self-incrimination. For example, it prevents law enforcement from forcing people to testify against themselves. Only when a grand jury is present Americans cannot use the amendment as a shield.
How much protection does the Fifth Amendment grant?
The Fifth Amendment only applies to verbal or physical testimonies, like speaking, writing or even nodding, but doesn’t protect against physical evidence. If hard physical evidence is found in relation to a crime, such as hair, blood, DNA, fingerprints, or in this case, incriminating documents, pleading the Fifth is useless.
Also, secondhand statements made voluntarily by a defendant but not outright to law enforcement are not protected by the Fifth Amendment. This includes confessions to friends or colleagues or journal entries. Byron R. White, a former Supreme Court justice wrote in 1976, “The Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify.”
For Trump, taking the Fifth may have been a risky move if contradicting testimony emerges. Additionally, the avoidance of certain questions can look like an admission of guilt when presented to a jury which could potentially lead to a guilty verdict. However, if the court rules one justifiably chose to stay silent, it can work out in the defendant’s favor.
Danny Cevallos, a legal analyst for MSNBC thinks that it was a smart move for the former president to take this plea. When someone pleads the Fifth, it isn’t an admission of guilt, although to some it might look that way. It just means that one knows answering an investigator’s questions could hurt his or her defense. Cevallos thinks that with this plea, there is a chance the courts could see Trump’s reasoning for staying silent and side with him in a trial.
Outside the courts, Trump’s decision to stay silent will serve as convenient ammunition for his political competitors and opponents. But to his supporters, it’s just evidence he won’t submit to a system that is perceived to be against him.
Correction: Trump’s quote in the first paragraph is from a rally in 2016, not 2017.