What does 'plead the Fifth' mean? Will the Trumps do it? (2022)

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People are also reading… Capitol riot hearings raise questions of presidential power Photos: Donald Trump through the years Talking politics With Melania 'How to Get Rich' On the course At Doral Sarazen Cup With Serena USS Iowa Debating Jeb Bush Las Vegas debate In Biloxi Campaign rally Winning South Carolina She's with him Signing autographs Another debate Waving to supporters In Arizona The Trump family At the convention The nominee The ticket Showing her support In Mexico Debating Clinton Casting his vote Election Night In the Oval Office Mitt Romney The inauguration Thumbs up Taking the oath Waving goodbye Armed Forces Ball James Comey Trump to lay out his agenda to Congress Thanking school children Medal of Honor recipients Justice Anthony Kennedy swears in Neil Gorsuch Easter Egg Roll Super Bowl champs Little Sisters of the Poor Russian foreign minister, ambassador At the Western Wall Meeting the pope Wreath-laying ceremony in Arlington National champs Congressional shooting At the White House Congressional Picnic Go, Cubs, go Departing the White House USS Gerald R. Ford joins the Navy The eclipse 9/11 anniversary Trump addresses world leaders at U.N. General Assembly Las Vegas shooting Trump visits Puerto Rico Trump meets Kissinger With Trudeau Medal of Honor Happy Halloween National Christmas Tree Lighting Celebrating GOP tax plan March for Life State of the Union School shootings State dinner With Olympians Greeting a guest Freed Americans Historic summit With Kim Kardashian West In Washington Trump North Carolina Debating Joe Biden Election Night 2020 Jan. 6 Leaving the White House Related to this story Most Popular Watch Now: Related Video Summer hailstorm creates winter wonderland in Wyoming

What does 'plead the Fifth' mean? Will the Trumps do it? (1)

NEW YORK (AP) — Donald Trump and two of his children — Donald Jr. and Ivanka — are due, in the coming days, to face questioning under oath in New York's civil investigation into their business practices. But will the Trumps answer?

The ex-president's lawyer has indicated that he will advise Trump to stay mum and invoke the Fifth Amendment's protection against self-incrimination. It's a constitutional right that gets high-profile exposure in settings from Congress to TV crime shows, but there are nuances. Here's what it means — and doesn't — to "plead (or 'take') the Fifth."

WHAT IS 'THE FIFTH'?

The Fifth Amendment to the U.S. Constitution establishes a number of rights related to legal proceedings, including that no one "shall be compelled in any criminal case to be a witness against himself."

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In the most direct sense, that means criminal defendants don't have to give damning testimony in their own cases. But it has come to apply in non-criminal contexts, too.

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WHAT'S THE THINKING BEHIND IT?

"It reflects many of our fundamental values and most noble aspirations," the Supreme Court wrote in 1964.

Among those ideals: preventing people from being tortured into confessing or being shoehorned into a "cruel trilemma of self-accusation, perjury or contempt" of court.

Many decades earlier, the court also questioned the reliability of confessions made under duress.

THE AMENDMENT SPECIFICALLY REFERS TO CRIMINAL CASES. HOW CAN IT APPLY TO A CIVIL INVESTIGATION?

Over time, the Fifth Amendment's protections have been understood to cover witnesses — not just defendants — in criminal and civil courts and other government settings. The Supreme Court has even held that Fifth Amendment rights protected the jobs of public employees who were fired after refusing to testify in investigations unless they got immunity from prosecution.

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The Fifth Amendment also underpins the famous Miranda warning about the right to remain silent and have an attorney on hand while being questioned in police custody.

SO ARE THERE ANY LIMITATIONS?

Under what has become the legal standard, the witness has to be facing a genuine risk of criminal prosecution, said Paul Cassell, a criminal law professor at the University of Utah. That means prosecution on any charge in any U.S. court.

There are sometimes disputes over whether the right is being invoked inappropriately. The questioning side can ask a judge to declare that someone needs to answer or face contempt of court and possible penalties.

But "the courts have generally thought that they should give the benefit of the doubt to someone who might be criminally prosecuted, rather than force someone to testify and then learn: 'Whoops!'" Cassell said.

OK. CAN SOMEONE WHO TAKES THE FIFTH DECIDE TO ANSWER SOME QUESTIONS, BUT NOT OTHERS?

Yes, it's not necessarily all-or-nothing. But even deciding to answer selectively could be risky: Responding to one question can enable the other side to argue that the witness can't refuse to answer other, related questions. Another concern: seemingly safe questions could be meant to build evidence about an allegation that's not on the witness' radar yet.

HMMMM. IF YOU INVOKE THE PROTECTION, DOES THAT WORK AGAINST YOU?

Legally, it depends. In a criminal case, prosecutors can't comment on a defendant's refusal to testify, and a jury can't be advised that it's OK to take defendants' silence as a sign of guilt. The Supreme Court has said that allowing that inference penalizes defendants for simply availing themselves of a constitutional protection.

But in civil cases, jurors generally are allowed to hold silence against a defendant or witness.

Then there's the court of public opinion.

"Does it look bad? In the general public's understanding, yes," says Howard University criminal law professor Lenese Herbert. "But that's just a result of poor civics education."

The former federal prosecutor often reminds her students that while jurors might want to hear a defendant's side of the story, it's a defense attorney's job to make sure the jury understands that the client has the right not to take the stand.

CAN WE GET BACK TO TRUMP? HE'S BEING QUESTIONED IN A CIVIL INVESTIGATION. CAN HE CLAIM THERE'S POTENTIAL FOR CRIMINAL PROSECUTION?

Indeed, his lawyers have already asserted that New York Attorney General Letitia James' civil inquiry is essentially a fact-finding mission for Manhattan District Attorney Alvin Bragg's parallel criminal probe.

What does 'plead the Fifth' mean? Will the Trumps do it? (3)

What does 'plead the Fifth' mean? Will the Trumps do it? (4)

James has said her investigation found evidence that the company puffed up the value of real estate assets to snag loans, insurance and tax breaks for land donations. Trump has denied the allegations, and the Republican has slammed the investigation as a political "witch hunt" by Democratic officials.

Meanwhile, other fruits of James' probe led the DA's office to bring criminal tax fraud charges against the businessman-turned-politician's company, called the Trump Organization, and its finance chief. The defendants have pleaded not guilty in that case, which involves claims of off-the-books compensation.

WHAT HAS TEAM TRUMP SAID ABOUT ALL THIS?

Trump lawyer Ronald Fischetti has said that unless legal immunity is granted for the ex-president's upcoming deposition — a term for sworn pretrial questioning out of court — he'd advise invoking the Fifth Amendment "because that's what the law provides." Still, he maintained that publicity surrounding such a choice now could harm Trump's defense if there's a criminal charge down the road.

"How can I possibly pick a jury in that case?" Fischetti said in trying, unsuccessfully, to block the deposition.

Trump himself, years ago, repeatedly suggested that only people with something to hide avail themselves of the protection.

"The mob takes the Fifth," he declared once.

Photos: Donald Trump through the years

Talking politics

What does 'plead the Fifth' mean? Will the Trumps do it? (5)

With Melania

What does 'plead the Fifth' mean? Will the Trumps do it? (6)

'How to Get Rich'

What does 'plead the Fifth' mean? Will the Trumps do it? (7)

On the course

What does 'plead the Fifth' mean? Will the Trumps do it? (8)

At Doral

What does 'plead the Fifth' mean? Will the Trumps do it? (9)

Sarazen Cup

What does 'plead the Fifth' mean? Will the Trumps do it? (10)

With Serena

What does 'plead the Fifth' mean? Will the Trumps do it? (11)

USS Iowa

What does 'plead the Fifth' mean? Will the Trumps do it? (12)

Debating Jeb Bush

What does 'plead the Fifth' mean? Will the Trumps do it? (13)

Las Vegas debate

What does 'plead the Fifth' mean? Will the Trumps do it? (14)

In Biloxi

What does 'plead the Fifth' mean? Will the Trumps do it? (15)

Campaign rally

What does 'plead the Fifth' mean? Will the Trumps do it? (16)

Winning South Carolina

What does 'plead the Fifth' mean? Will the Trumps do it? (17)

She's with him

What does 'plead the Fifth' mean? Will the Trumps do it? (18)

Signing autographs

What does 'plead the Fifth' mean? Will the Trumps do it? (19)

Another debate

What does 'plead the Fifth' mean? Will the Trumps do it? (20)

Waving to supporters

What does 'plead the Fifth' mean? Will the Trumps do it? (21)

In Arizona

What does 'plead the Fifth' mean? Will the Trumps do it? (22)

The Trump family

What does 'plead the Fifth' mean? Will the Trumps do it? (23)

At the convention

What does 'plead the Fifth' mean? Will the Trumps do it? (24)

The nominee

What does 'plead the Fifth' mean? Will the Trumps do it? (25)

Showing her support

What does 'plead the Fifth' mean? Will the Trumps do it? (27)

In Mexico

What does 'plead the Fifth' mean? Will the Trumps do it? (28)

Debating Clinton

What does 'plead the Fifth' mean? Will the Trumps do it? (29)

Casting his vote

What does 'plead the Fifth' mean? Will the Trumps do it? (30)

Election Night

What does 'plead the Fifth' mean? Will the Trumps do it? (31)

In the Oval Office

What does 'plead the Fifth' mean? Will the Trumps do it? (32)

Mitt Romney

What does 'plead the Fifth' mean? Will the Trumps do it? (33)

The inauguration

What does 'plead the Fifth' mean? Will the Trumps do it? (34)

Thumbs up

What does 'plead the Fifth' mean? Will the Trumps do it? (35)

Taking the oath

What does 'plead the Fifth' mean? Will the Trumps do it? (36)

Waving goodbye

What does 'plead the Fifth' mean? Will the Trumps do it? (37)

Armed Forces Ball

What does 'plead the Fifth' mean? Will the Trumps do it? (38)

James Comey

What does 'plead the Fifth' mean? Will the Trumps do it? (39)

Trump to lay out his agenda to Congress

What does 'plead the Fifth' mean? Will the Trumps do it? (40)

Thanking school children

What does 'plead the Fifth' mean? Will the Trumps do it? (41)

Medal of Honor recipients

What does 'plead the Fifth' mean? Will the Trumps do it? (42)

Justice Anthony Kennedy swears in Neil Gorsuch

What does 'plead the Fifth' mean? Will the Trumps do it? (43)

Easter Egg Roll

What does 'plead the Fifth' mean? Will the Trumps do it? (44)

Super Bowl champs

What does 'plead the Fifth' mean? Will the Trumps do it? (45)

Little Sisters of the Poor

What does 'plead the Fifth' mean? Will the Trumps do it? (46)

Russian foreign minister, ambassador

What does 'plead the Fifth' mean? Will the Trumps do it? (47)

At the Western Wall

What does 'plead the Fifth' mean? Will the Trumps do it? (48)

Meeting the pope

What does 'plead the Fifth' mean? Will the Trumps do it? (49)

Wreath-laying ceremony in Arlington

What does 'plead the Fifth' mean? Will the Trumps do it? (50)

National champs

What does 'plead the Fifth' mean? Will the Trumps do it? (51)

Congressional shooting

What does 'plead the Fifth' mean? Will the Trumps do it? (52)

At the White House

What does 'plead the Fifth' mean? Will the Trumps do it? (53)

Congressional Picnic

What does 'plead the Fifth' mean? Will the Trumps do it? (54)

Go, Cubs, go

What does 'plead the Fifth' mean? Will the Trumps do it? (55)

Departing the White House

What does 'plead the Fifth' mean? Will the Trumps do it? (56)

USS Gerald R. Ford joins the Navy

What does 'plead the Fifth' mean? Will the Trumps do it? (57)

The eclipse

What does 'plead the Fifth' mean? Will the Trumps do it? (58)

9/11 anniversary

What does 'plead the Fifth' mean? Will the Trumps do it? (59)

Trump addresses world leaders at U.N. General Assembly

What does 'plead the Fifth' mean? Will the Trumps do it? (60)

Las Vegas shooting

What does 'plead the Fifth' mean? Will the Trumps do it? (61)

Trump visits Puerto Rico

What does 'plead the Fifth' mean? Will the Trumps do it? (62)

Trump meets Kissinger

What does 'plead the Fifth' mean? Will the Trumps do it? (63)

With Trudeau

What does 'plead the Fifth' mean? Will the Trumps do it? (64)

Medal of Honor

What does 'plead the Fifth' mean? Will the Trumps do it? (65)

Happy Halloween

What does 'plead the Fifth' mean? Will the Trumps do it? (66)

National Christmas Tree Lighting

What does 'plead the Fifth' mean? Will the Trumps do it? (67)

Celebrating GOP tax plan

What does 'plead the Fifth' mean? Will the Trumps do it? (68)

March for Life

What does 'plead the Fifth' mean? Will the Trumps do it? (69)

State of the Union

What does 'plead the Fifth' mean? Will the Trumps do it? (70)

School shootings

What does 'plead the Fifth' mean? Will the Trumps do it? (71)

State dinner

What does 'plead the Fifth' mean? Will the Trumps do it? (72)

With Olympians

What does 'plead the Fifth' mean? Will the Trumps do it? (73)

Greeting a guest

What does 'plead the Fifth' mean? Will the Trumps do it? (74)

Historic summit

What does 'plead the Fifth' mean? Will the Trumps do it? (76)

With Kim Kardashian West

What does 'plead the Fifth' mean? Will the Trumps do it? (77)

In Washington

What does 'plead the Fifth' mean? Will the Trumps do it? (78)

Trump North Carolina

What does 'plead the Fifth' mean? Will the Trumps do it? (79)

Debating Joe Biden

What does 'plead the Fifth' mean? Will the Trumps do it? (80)

Election Night 2020

What does 'plead the Fifth' mean? Will the Trumps do it? (81)

Jan. 6

What does 'plead the Fifth' mean? Will the Trumps do it? (82)

Leaving the White House

What does 'plead the Fifth' mean? Will the Trumps do it? (83)

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