Do you want to take the 5th? Trump could soon have the option of choosing in NY probe
NEW YORK, (AP) -- To plead or not to plead Fifth Amendment?
This is the question Donald Trump might face following a New York judge's order to him testify in an ongoing state civil investigation into his business practices.
Trump's lawyers will almost certainly appeal Judge Arthur Engoron’s Thursday ruling that Trump and his two oldest children, Ivanka Trump Jr. and Donald Trump Jr. have 21 days to comply a subpoena for their testimony in an investigation by New York Attorney General Letitia Jam.
Trump will have to choose between answering questions under oath and remaining silent. He would also need to invoke his Fifth Amendment right against self incrimination. Trump said this to a crowd of supporters in Iowa during his run for the presidency.
Trump wrote, "If you're innocent, don't remain silent." He offered free advice to Bill Cosby in 2014 as he faced a series of sexual assault allegations. You look as guilty as hell!"
Stephen Gillers, a New York University law professor, said that it would be extraordinary for a former president or potential candidate to the office of Fifth. The problem with Trump appearing, at least as his lawyers will view it, is that he can't be controlled and will likely say things that will cause more problems for himself and his family.
Trump's lawyers admitted during a hearing that he could be at risk if he sits down with the attorneys who are leading an investigation he has long referred to as a witch hunt.
James, a Democrat says that her investigation found evidence Trump's company used fraudulent or misleading valuations of his assets in order to obtain loans and tax benefits.
Manhattan's district attorneys are also conducting an investigation. Trump could testify in civil proceedings and any information he gives could be used against him in criminal proceedings. The district attorney's office indicted Trump's longtime finance chief and his company for what they called a "sweeping, audacious" scheme of tax fraud.
Trump's lawyers said that even if he is silent, it could harm a criminal defense. "And how can I possibly choose a jury for that case?" Ronald Fischetti stated during Thursday's hearing.
Trump would not be allowed to make a blanket assertion of his Fifth Amendment rights, but would be required to invoke it for each question being asked. David S. Weinstein is a former federal prosecutor. He said, "It's a long and tedious process."
This was also the case in 1990 when Trump refused to answer 97 questions during a divorce deposition.
He seemed to enjoy such questioning throughout his career as an estate developer. He sat for hours depositions in lawsuits regarding contracts, defamation, and other legal disputes. He used the platform often to talk about his wealth and popularity, to defend his tendency to exaggerate, and to deflect responsibility onto others, especially when it came down to facts and figures later under scrutiny.
Also, he has displayed flashes of irritation or condescension. He once ridiculed an attorney for asking "very stupid questions."
Trump was particularly fond of answering questions about his wealth and his property values -- an area of special interest to the New York civil inquiry.
He defended the businessman's instinct to give the public the most positive and optimistic outlook possible, when questioned.
Trump stated that he always wants to give the best possible spin to a property. He was speaking out in 2007 in depositions about a lawsuit in connection with which he had accused a journalist of understating Trump's wealth. "No different from any other realty developer, no difference than any other businessman and no different as any politician."
Trump's lawyers claimed that she was using unfair tricks to try and get subpoenas for James canceled.
They claimed that her plan was to use civil investigation to gather evidence for the ongoing criminal grand jury investigation. Trump might also invoke his Fifth Amendment right to not testify. The attorney general could use that refusal in civil litigation.
Trump's lawyers suggested that any testimony should be held until the criminal investigation is completed. This would allow the president to exercise his Fifth Amendment rights.
Engoron, the judge, refused to grant a delay.
He wrote that the target of an investigation "cannot use The Fifth Amendment as both A sword and B shield; a shield to protect against questions and a weapon against the investigation."
Engoron stated that Trump and his children will be deposed. They "will have the right not to answer any questions they believe might incriminate" them. This refusal cannot be used in criminal proceedings or commented upon. It is fair to allow jurors in civil cases to learn these refusals and draw their own conclusions.