NEW YORK (AP) – To claim the Fifth or not to recognize the Fifth?
This is a question that Donald Trump may face after a judge in New York Ordered the former president testify in a lengthy state civil investigation into his business practices.
Trump’s lawyers will almost certainly appeal Judge Arthur Engoron’s ruling Thursday that Trump and his two older children, Ivanka and Donald Trump Jr., have 21 days to execute a subpoena to testify in New York Attorney General’s investigation Leticia James .
Without a successful legal challenge, Trump would be faced with a decision: to answer questions under oath or to remain silent and refer to his Fifth Amendment against self-incrimination, a tactic he equated to proof of guilt.
“The Crowd Takes the Fifth,” Trump said in front of an election campaign crowd in Iowa when running for president.
“If you’re innocent, don’t keep quiet,” Trump tweeted in 2014, offering free advice when Bill Cosby faced a barrage of sexual assault allegations. “You look like hell!”
Aside from any legal considerations, refusing to answer James ’questions carries political risks.
“It would be really great for a former president and a potential candidate for the post,” said Stephen Gilers, a law professor at New York University. “The problem with the emergence – at least as his lawyers will see it – is that Trump can’t be controlled and he will probably say things that will bring more problems for him and his family.”
Trump’s own lawyers admitted during a court hearing Thursday that the former president is at risk of meeting with lawyers leading an investigation he has long ridiculed as a “witch hunt.”
James, a Democrat, says her investigation has found evidence that Trump’s campaign used a “fraudulent or deceptive” valuation of his assets to obtain loans and tax breaks.
The Manhattan District Attorney is also investigating, and if Trump testified in a civil investigation, anything he says could be used against him in criminal proceedings. Last year the district prosecutor’s office blamed Trump’s campaign and the longtime finance chief in what prosecutors called a “sweeping and daring” scheme of tax fraud.
But even silence could hurt potential criminal defenses, Trump’s lawyers say.
“If he comes and will follow my advice, then you cannot answer these questions without … immunity, because it is provided by law, and to adopt the Fifth Amendment, it will be on every front page of the world newspaper. And how can I choose a jury in that case? ” This was stated by lawyer Ronald Fisheti during the hearing on Thursday.
Trump will not be allowed to “fully assert” his right to the Fifth Amendment, but he will have to refer to it “separately for each question asked,” said David S. Weinstein, a former federal prosecutor. “It’s a very long and protracted process,” he said.
That was in 1990, when Trump refused to answer 97 questions in a divorce petition.
But he seemed to enjoy such interrogations on many other occasions throughout his career as a developer, sitting for hours testifying in lawsuits about contracts, libel and other legal disputes. He often used the platform to explain his wealth or popularity, defend his propensity for exaggeration, and shift the blame onto others, especially when it came to facts and figures that later came under close scrutiny.
He also showed outbursts of irritability or indulgence, including once ridiculing a lawyer for what he said were “very stupid questions.”
One of the topics to which Trump became particularly accustomed was questions about the assessment of his wealth and the value of his property – areas of particular interest in the New York civil investigation.
During the interrogation, he defended the instinct of his businessman to give the public the most rosy, the most optimistic forecast.
“You always want the best real estate you can handle,” Trump said in a 2007 statement in connection with a lawsuit in which he accused a journalist of belittling his wealth. “Not different from any other developer, not different from any other businessman, not different from any politician.”
Trying to obtain the annulment of the summons from James, Trump’s lawyers claimed that she was involved in an unfair trick.
Her plan, they argued, was to use the civil investigation as a ploy to gather evidence that would then be used in the grand jury’s ongoing criminal investigation. And if Trump refers to his Fifth Amendment not to testify, the Attorney General can use that denial to harm Trump in a civil lawsuit.
Trump’s lawyers said any testimony should be postponed until a criminal investigation is completed, which will allow the president to avoid having to refer to his Fifth Amendment.
Judge Engoron declined to delay.
The object of investigation, he said, “cannot use the Fifth Amendment simultaneously as a sword and shield; a shield from questions and a sword against the investigation itself, ”he wrote.
If Trump and his children are removed from office, Engaran said, they “will have the right to refuse to answer any questions they say may incriminate them, and that denial cannot be commented on or used against them in criminal prosecution. However, there is no injustice in allowing civil jurors to know these denials and draw their own conclusions. ”