The 5th Amendment – It protects you against self-incrimination but maybe not civil liability – Why former President Trump made the right decision and why everyone should do the same exact thing!
Recently, former President Donald Trump invoked his 5th Amendment right at a deposition in New York. While Trump invoked his right against self-incrimination, the deposition pertained to a New York Attorney General’s civil investigation into his business dealings within New York State. New York Attorney General, Letitia James provided notice to Trump and his legal team about the deposition but Trump, however exercised the right afforded to him and every other citizen of the United States.
What is the 5th Amendment?
The 5th Amendment protects citizens from engaging in testimony or making a statement (verbal or written) if it may incriminate that person. This does not mean that Trump is guilty of any crimes, but only that any testimony he would have provided could have been used in a potential criminal prosecution against him. Despite critics, this was the logical and the correct legal strategy. Trump would have gained absolutely no benefit from his potential testimony in a deposition. New York Attorney General’s office was unlikely to end this civil investigation with Trump’s deposition. His testimony, therefore, would have only provided both New York State and potentially the federal government with information that it would not otherwise be able to obtain.
The 5th Amendment applies to criminal cases and civil cases but there is an important distinction.
It is important to understand that the 5th Amendment applies not only to civil proceedings, but also criminal investigations. In the case of Miranda v. Arizona, the US Supreme Court extended the 5th Amendment to any situation outside of a courtroom in which a person’s freedom is restricted. This means that if police or other law enforcement take a person into custody, the law enforcement officer must make the suspect aware of all of their rights, otherwise known as Miranda rights.
Your Miranda Rights are as follows:
- The right to remain silent.
- The right to have an attorney present during questioning.
- The right to have a government appointed attorney if the suspect cannot afford one.
If police or other members of law enforcement do not provide a suspect with the Miranda rights, Courts will suppress any statements made as a violation of the 5th Amendment against self-incrimination provided that the suspect has not otherwise waived those rights. A Court will only consider a waiver when a suspect has made one knowingly, intelligently, and voluntarily. To determine if a waiver is knowing, intelligent and voluntary, a Judge will examine all the circumstances surrounding the incident (totality of the circumstances).
Civil litigation and Your 5th Amendment Rights
It is unlikely that Trump will ever face any criminal prosecution in New York for any of his alleged real estate dealings. It appears that the civil case against him is the strongest evidence that the New York Attorney General had against him. It is important to keep in mind that the civil standard is a much lower evidentiary burden of proof (preponderance) then a criminal courtroom (guilty beyond a reasonable doubt).
While Trump did invoke his 5th Amendment right, there are potential civil consequences. The US Supreme Court has ruled that invoking the 5th Amendment invocation doesn’t prevent an adverse influence against parties to a civil action. This means that silence is sometimes considered persuasive and failing to contest an assertion can be considered acquiescence if under normal circumstances a person would have objected to the question. Obviously, however, civil monetary damages (money), regardless of the amount, are far less serious than criminal charges which could take away your liberty (prison)!
This would never happen in a criminal case. A criminal judge or jury can not make any adverse influence from your silence. It is actually a jury instruction which the jurors would receive prior to beginning their deliberation in any criminal trial.
Mr. Trump, however, has the resources to fight New York State in a civil dispute, which could easily drag on for years. If Trump were to be re-elected President in 2024, this would not necessarily stop a civil action against him. Before or after a person becomes President, they are subject to the same civil litigation laws as any other person in the country, but they are immune from liability in the person capacity when acting within their executive powers or when completing official acts.
Did President Trump make the right decision?
The bottom line is President Trump took the correct advice from his lawyers and remained silent. If you’re faced with even the slightest possibility of criminal prosecution, it is always better to not say anything. Trump is obviously a target for the justice department and many state governments who could benefit from him not running for President in 2024. The point of this blog isn’t to make a political statement. My advice would be the same regardless of the political figure. Understand your constitutional rights and exercise them early and often!
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