Where to begin?
I began this column in defense of the fifth amendment and former president Trump’s wise decision to invoke it with respect to his deposition in a civil case brought against him by the New York State Attorney General. Almost simultaneously, news of the FBI’s search of Mar-a-Lago broke, heralding what might be the most bizarre week in American history.
The government had been trying, rather patiently, to retrieve from Mar-a-Lago extremely sensitive documents, some of which are marked Top Secret and which Trump had been resisting returning to the U.S. Archives as he was required to do upon leaving office. The government had been demanding the files almost from the time Trump departed Washington. After months of apparent stonewalling by Trump, the Department of Justice sought and received a warrant to search the premises at Mar-a-Lago in order to retrieve the files that Trump seemed determined to keep.
Then events turned really bizarre. Trump, almost simultaneously, announced that the FBI may have planted the highly sensitive, top-secret files and that they weren’t really top-secret because when he took them, “they were deemed to be declassified” because he took the allegedly planted files to the residential quarters at the White House to read, and that, anyway, all the FBI had to do was ask for the files, and he would have gladly handed them over…except the government had been demanding the files for many months without success.
There is quite a bit to unpack here. First, why were any government files at Mar-a-Lago? Then, there is a procedure for the presidential declassification of secret files, let alone top-secret files, and there seems to be no record of such declassification, other than Trump’s retroactive inference that he had declassified them while leaving no record of the declassification…and why in the world would a President declassify apparently highly sensitive nuclear files in the first place. And, of course, the contradictory dual statements that the files had been deemed declassified (by Trump) and therefore no longer a secret, but also that the allegedly benign declassified files had been planted at Mar-a-Lago by the FBI. We’ll let the Mar-a-Lago purloined files caper marinate a bit longer before commenting further. Stay tuned.
Meanwhile, lost in all the furor over the Justice Department’s action to retrieve the country’s files from Mar-a-Lago, was the contretemps over former President Trump pleading the 5th in a deposition regarding a civil case pending in the state of New York.
Now, I enjoy well-deserved schadenfreude like everyone else, but not in this case.
I know, I know, Trump has taunted others for taking the fifth, proclaiming that only the guilty take the fifth, and asking why would an innocent person take the fifth and that taking the fifth is what mobsters do.
But that was just Trump being Trump.
When it came time for him to be deposed by lawyers from New York Attorney General Letitia James’ office, he said, more or less, what every “target” says when they exercise their 5th amendment rights. In a prepared statement, Trump said, “Under the advice of my counsel, I declined to answer the questions under the rights and privileges afforded to every citizen under the United States Constitution.” Good for him. That is precisely what he should have done.
Trump’s deposition was part of a three-year civil investigation into whether the Trump Organization misled lenders, insurers, and tax authorities by providing them misleading financial statements. In a statement released during the deposition, Trump criticized James, calling her a “renegade prosecutor” running a “vindictive and self-serving fishing expedition.” Before the deposition began, Trump said he would be “seeing” James “for a continuation of the greatest Witch Hunt in U.S. history! My great company, and myself, are being attacked from all sides. Banana Republic!” Again, Trump being Trump.
Nonetheless, he did the right thing by asserting his 5th amendment right against self-incrimination. Evidence and testimony gathered in a civil case such as this can be used against a defendant in a concurrent criminal case, which is also pending against Trump.
The 5th amendment to the United States Constitution represents a fundamental right every American should celebrate. It means, in our country, no one, from the most obscure among us to the most celebrated among us, ever has to prostrate themselves before an accusing government. It means that no one can be compelled to assist any accusing state or the federal government in a prosecution of which they are a probable or possible target. It says to the government, “you want to make a case against me, then prove you can make that case without me as your witness.”
Every American should celebrate the 5th amendment. And any American could need the 5th amendment to protect themselves against any powerful accusing government authority. In America, anyone accused of a crime has the absolute right to remain silent. As everyone who has ever watched a crime thriller knows, a person about to be charged with a crime must be warned that whatever they say, if they choose to say anything at all, can be used against them in a court of law. The 5th amendment also means the government has only one crack at a defendant for the same alleged offense. That is, it protects all Americans against double jeopardy. No one can be charged a second time for a crime for which they have once been acquitted. So, if the government is going to make a case, it had better be well-founded. That’s true in any case brought against Donald Trump, just as it would be true in any case brought against any other American citizen.
The 5th amendment is vital. No one should disparage Trump or anyone else for asserting their 5th amendment right, even in a civil case as happened this week when Trump asserted his 5th amendment right not to answer questions. That said, in a civil case (as compared to a criminal case), a jury can infer or impute adverse implications when the 5th amendment is asserted because neither the life nor the freedom of the defendant is a stake. In a criminal case, a defendant doesn’t even have to testify, and the accusing authority wouldn’t even be allowed to tell a jury whether a defendant asserted any fifth amendment right during questioning. While 5th amendment protection has been infused into the sinews of American jurisprudence since before the founding, it wasn’t until much later that the right against self-incrimination was upheld for civil as well as criminal defendants. That is a good thing.
Trump found himself between the proverbial rock and a hard place when he appeared this week for his court-ordered deposition. While James’ investigation pertains to an impending civil case, it is known that she is sharing what she is finding with Manhattan District Attorney Alvin Bragg, who says a criminal investigation of Trump is ongoing. The former president’s lawyers maintain that their client is in a Catch-22 where asserting his rights can put him in civil jeopardy. And they are right.
While Trump was perfectly entitled to take the fifth, just as any citizen would be, there are risks. Jennifer Rodgers, the former U.S. Justice Department prosecutor for the very aggressive Southern District, believes Trump did the wise thing. “The negative inference that can be drawn at a civil trial down the road isn’t great for him. That’s the consequence of refusing to testify today, that the jury will be instructed that they can infer that his testimony would have harmed his case. Still, it’s small potatoes compared to the substantial risk that he would disclose damaging information that could be used against him civilly and/or criminally or that he would be caught in a lie to avoid disclosing harmful information and thereby open himself up to perjury charges, or both,” she said.
Everyone’s fifth amendment right is carefully guarded in our criminal justice system. Since American colonial days, it has been everyone’s defense against coercive, star-chamber proceedings. Coercive, because confessions in pre-seventeenth-century England would be routinely, and heavy-handedly, coerced or compelled. Our legal system is founded on adversarial, rather than inquisitive, proceedings. That means it’s the government’s burden to provide evidence of guilt, not the defendant’s obligation.
Americans have been free from the risk of self-incrimination even in colonial days and long before there was a Constitution and a Bill of Rights. Protection against self-incrimination was enshrined in nine state constitutions and was considered common law throughout most of the colonies before there was the United States of America.
Readers of this column know I am not a fan of former President Trump. However, whether the reader is, or is not, an advocate of the former president, the reader should be an advocate of the 5th amendment. Just as it protects Donald Trump, it protects anyone hauled before the bar of justice.
The week of August 8th, 2020. Mark it down. It rates as one of the most bizarre weeks in American history.