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Why Trump’s invoking the Fifth can be used against him — in his civil case

We saw video this week of the former president citing his Fifth Amendment rights in New York AG Tish James’ fraud probe. A civil jury can use it against him.


Donald Trump, who has said that invoking the Fifth is for mobsters and not for innocents, has famously been radicalized in favor of the right against self-incrimination.

We saw evidence of that evolution this week, when video was published of Trump’s deposition last year in New York Attorney General Letitia James’ civil fraud probe.

But what we have is more than just video evidence of the former president effectively conceding in a legal proceeding that he might have violated the law. As Harry Litman pointed out on the show Tuesday, we saw evidence that the jury in Trump’s civil trial, set for October, can see too.

But why can invoking the Fifth Amendment be used against someone in a civil case but not in a criminal case?

First, let’s look at the text of the amendment itself, which states that a person can’t be “compelled in any criminal case to be a witness against himself.”

And in 1976, the Supreme Court observed that in criminal cases, “the stakes are higher and the State’s sole interest is to convict.” In that same case, the justices noted “the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.”

So while everyone has the right to invoke constitutional protections against self-incrimination in criminal cases, Trump shouldn’t expect those protections when he faces a civil jury this fall. Though, of course, he also faces several criminal probes in which, as the Supreme Court put it, “the stakes are higher.”