Amid tumultuous week, Trump takes the Fifth more than 400 times Deposition before New York Attorney General Letitia James is part of remarkable week of legal tumult for former president
NEW
YORK — Donald Trump spent hours in a deposition Wednesday with the New
York attorney general and repeatedly invoked his Fifth Amendment right
not to answer questions, the latest in a series of ominous legal
developments that would have once been considered devastating for a
former president considering another run for the White House.
Trump
emerged from the question-and-non-answer session with praise for the
“very professional” way Attorney General Letitia James’s team handled
the meeting, in which he refused more than 400 times to answer questions
about his businesses, property valuations and loans, according to a
person with knowledge of the discussion. This person, speaking on the
condition of anonymity to describe the closed session, said Trump stated
his name, formally declared his Fifth Amendment right not to
incriminate himself, and from then on replied to many questions with two
words: “Same answer.”
Less than two years after leaving office, Trump faces legal jeopardy from multiple directions,
with criminal probes into his possible withholding of classified
documents and efforts to overturn the 2020 election results; James’s
civil probe; and congressional inquiries into his taxes and his conduct
related to the Jan. 6, 2021, Capitol riot.
In
a lengthy statement on Wednesday, the former president denied any
wrongdoing and accused the U.S. government of unfairly targeting him in
multiple ways. Incredibly, his deposition marked just the halfway point
of what has been a frenetic week for Trump and his lawyers.
On Monday, FBI agents searched his residence and office space
at his home in Mar-a-Lago, a Florida resort property. People familiar
with that investigation said the agents were seeking classified
documents and other presidential records amid a months-long disagreement
between federal officials and Trump’s advisers about whether he
withheld important files or items that belonged to the government.
One
of Trump’s lawyers said agents removed about a dozen boxes of material
that had not been brought back to Washington in January, when the
government first asked Trump to return what he had taken to comply with the Presidential Records Act.
The following day,FBI agents involved in a different case took the cellphone of one of Trump’s most forceful congressional allies,
Rep. Scott Perry (R-Pa.). The court-approved seizure was part of an
expansive Justice Department investigation into efforts by Trump
supporters to block Joe Biden’s electoral victory by trying to advance
fake electors in late 2020, said people familiar with that
investigation, who also spoke on the condition of anonymity to discuss
it.
Then,
on Wednesday morning, Trump arrived at a Manhattan office building to
be deposed in James’s investigation of his business dealings. While the
case is civil rather than criminal, any information he provided in such a
deposition could be used in some of the criminal investigations
surrounding him.
Over
the years, Trump has mocked others for taking the Fifth, suggesting
that it showed guilt. “If you’re innocent, why are you taking the Fifth
Amendment?” he taunted his Democratic opponent, Hillary Clinton, in
2016.
Since
2019, Trump has faced criminal and civil investigations into his
business practices at the Trump Organization, before he entered the
White House. The criminal probe, led by the Manhattan District
Attorney’s Office, appears to have lost momentum since the arrival of
District Attorney Alvin Bragg (D) in January. The civil inquiry is
proceeding, however.
Trump’s
deposition before James, along with testimony by his daughter Ivanka
Trump and son Donald Trump Jr., had been postponed from last month
because of the July 14 death of his ex-wife Ivana Trump.
Ivanka
and Donald Trump Jr., who both served as executives in the family
business, were deposed recently and answered questions, said a person
familiar with the investigation, who like others spoke on the condition
of anonymity. Their brother Eric Trump, who was also a lieutenant in the
company, took the Fifth more than 500 times when he sat for questioning
in October 2020 in the same investigation, according to public
disclosures made by James.
That
Eric Trump refused to answer questions — while his siblings, two years
later, were forthcoming — could reflect that attorneys for the family
think the new district attorney would not pursue a case against them.
Two veteran prosecutors resigned in protest earlier this year after
learning Bragg was not authorizing them to seek an indictment against
Donald Trump.
Bragg has said that the investigation is still active, and he appointed one of his own executives to oversee the case.
Trump
has repeatedly accused the attorney general of targeting him and his
business to score political points — pointing to comments James made on
the campaign trail promising to investigate Trump and the Trump
Organization.
In
a post on Trump’s social media service, Truth Social, early Wednesday,
he continued his attacks, calling the Black law enforcement official
“racist” and saying he was headed to her office “for a continuation of
the greatest Witch Hunt in U.S. History!”
James
could file a lawsuit against the Trump Organization and its executives
if she concludes that their conduct legally amounted to wrongdoing.
Lawyers for Trump have said that the valuations practices with which
James is concerned are standard in the real estate industry.
Tristan
Snell, a former lawyer in the attorney general’s office, said
investigators are probably pleased with Wednesday’s deposition, because
Trump’s refusal to answer questions essentially amounts to an admission
of guilt and would be seen as such if the case is tried in court.
“This is one of the best outcomes they could have hoped for going into this,” said Snell,
who worked on the state’s case against Trump University, which resulted
in a $25 million settlement. He said Trump’s decision to plead the
Fifth only increased the odds James’s office would succeed in an
enforcement action against Trump and his company.
The
Fifth Amendment is invoked when there is a possibility of incriminating
oneself in criminal activity. Trump repeatedly deferring to his
constitutional protection at the interview“raises a strong
inference” of liability in a civil case, where the burden of proof is
much lower than in criminal court, Snell said.
Last
year, as part of the criminal inquiry into Trump business practices,
Trump’s longtime chief financial officer, Allen Weisselberg, and the
Trump Organization were indicted in connection with an alleged long-running tax avoidance scheme. Weisselberg and the company have pleaded not guilty and are due in court Friday for pretrial proceedings.
On
Wednesday, after batting away questions in James’s investigation, Trump
again took to social media to bash the criminal probe into White House
documents, calling the FBI search at Mar-a-Lago “a surprise attack” and
“POLITICS.”
Trump
and his lawyers have refused to make public the copy of the federal
search warrant they were given, which is under court seal but was
approved by a federal judge [actually a magistrate, appointed by the court's judges, whereas judges go through nomination and Senate approval] and would indicate what crimes are being
investigated.
Separately,
Trump partisans have come under scrutiny in an investigation by local
authorities in Georgia about his efforts to overturn the state’s
election results. A grand jury has been convened for that probe and has
sought testimony from people close to the former president.
And
the Justice Department’s criminal probe, which began with a focus on
the hundreds of people who stormed the Capitol on Jan. 6, has expanded
to include Trump’s conversations and actions during the period after the
election. In recent months, agents and prosecutors have sought
communications records and interviews from many members of the former
president’s inner circle.
The
decision was a victory for the House Ways and Means Committee, whose
chairman, Rep. Richard E. Neal (D-Mass.), first requested in 2019 that
the Internal Revenue Service turn over copies of Trump’s tax returns to
the committee. The former president has a week to appeal the ruling
before it takes effect.
The
investigation of Trump’s behavior related to the 2020 election by a
different House committee has been much higher profile, with widely watched hearings this summer painting a damning portrait of Trump through video, audio and live testimony from many former White House aides and others.
And
the work of the House panel probing Jan. 6 continues. Mike Pompeo, who
served as Trump’s secretary of state and his CIA director, appeared
before the committee on Tuesday, according to a person familiar with the
matter who spoke on the condition of anonymity to discuss it.
This
person said Pompeo was asked about the 25th Amendment, which allows for
the removal of a president if they are unfit for duty, among other
topics. Pompeo told the committee there was never a serious effort by
Trump’s Cabinet to use the amendment, the person said.
[italics added] WaPo reports Trump had withheld about a dozen boxes of documents at Mar a Lago, which the FBI seized. WaPo reports Trump holds the copy of the warrant served at Mar a Lago but refuses disclosure. Any bleating by Republicans about the warrant should be expected as entailing wanting its content disclosed, so they would know what they are talking about. WaPo tied the New York deposition into other legal matters Trump faces, and noted son Eric took the Fifth more frequently than Donald did, in the same proceeding. WaPo noted a possibly parallel seizure of a Congressman's phone.
While Seattle Times homepage does not include coverage of the deposition at all as of the time this is typed, Strib carries an AP feed, however they may have shortened it for brevity. From headline onward, wording choices differ, as does content breadth relative to WaPo's item.
Trump says he took the Fifth in New York civil investigation Donald Jr. and Ivanka Trump gave depositions in recent days, two people familiar with the matter said.
NEW YORK — Former President Donald Trump invoked his
Fifth Amendment protection against self-incrimination as he testified
under oath Wednesday in the New York attorney general's long-running
civil investigation into his business dealings.
About an hour after arriving
at Attorney General Letitia James' Manhattan offices, Trump announced
that he "declined to answer the questions under the rights and
privileges afforded to every citizen under the United States
Constitution."
"I once asked, 'If you're
innocent, why are you taking the Fifth Amendment?' Now I know the answer
to that question," the statement said. "When your family, your company,
and all the people in your orbit have become the targets of an
unfounded politically motivated Witch Hunt supported by lawyers,
prosecutors and the Fake News Media, you have no choice."
During more than six hours at
the office building, Trump used Truth Social, the social media platform
he founded, to review the decor — "very plush, beautiful and expensive"
— and to suggest the attorney general was squandering time
investigating him instead of attending to crime in New York.
But after leaving around 3:30
p.m., he described the encounter as "very professional" and added a
plug for his "fantastic" company.
The questioning brought him
face-to-face with an official he had called an "out-of-control
prosecutor" and a racist. James, a Democrat, is the first Black person
to hold her post.
James' office declined to detail the interview, beyond saying that she personally took part in the deposition.
One of Trump's lawyers,
Ronald Fischetti, told The New York Times the former president answered
one question, about his name, read a statement into the record in which
he questioned James' motives, then invoked the Fifth Amendment. Trump
then said "same answer" to every question he was asked over several
hours, Fischetti said.
That deep into the item before saying he did not answer a thing. And giving a Trump lawyer's spin. More -
As vociferous as Trump has been in defending himself in
written statements and on the rally stage, legal experts said answering
questions in a deposition was risky because anything he said could
potentially be used against him in a parallel criminal investigation by
the Manhattan district attorney. The Fifth Amendment protects people
from being compelled to be witnesses against themselves in a criminal
case.
If the attorney general's
investigation leads to a civil case against Trump and it went to trial,
jurors could be told he invoked his protection against
self-incrimination.
New York University law
professor Stephen Gillers said he was surprised that Trump had done so,
given his previous experience with depositions, a legal term for sworn
testimony that's not given in court.
"Jousting with lawyers at
depositions, while avoiding lying, is something he's proud of," Gillers
said. "Perhaps his lawyers feared that his impetuosity would imperil
him."
Trump has undergone many
depositions, dating to his career as a real estate developer. He has
sometimes seemed to relish giving answers: For example, he said he was
"pleased to have had the opportunity to tell my side" last October in a
lawsuit brought by protesters who say his security guard roughed them up
outside Trump Tower in 2015.
However, Trump invoked the Fifth Amendment to refuse to answer 97 questions in a 1990 divorce deposition.
Messages seeking comment were left with James' office.
Wednesday's events unfolded two days after FBI agents searched Trump's
Mar-a-Lago estate in Florida as part of an unrelated federal probe into
whether he took classified records when he left the White House.
WaPo did not point out taking the Fifth can be used in civil cases, while it cannot be considered as evidence in criminal proceedings. WaPo did not get into Trump's jousting in other depositions, or other things in the AP version readers can review via the Strib link. Then, beyond the single mention of the Mar a Lago FBI search, AP did not update the Mar a Lago seizure of "dozen boxes" news nor mention that Trump declines to reveal the warrant contents - or if AP did Strib may have shortened for brevity. More from Strib - showing mention of Trump children being deposed:
In May, James' office said that it was nearing the end of
its investigation against Trump. The Republican's deposition was one of
the few remaining missing pieces.
The attorney general could
decide to bring a lawsuit seeking financial penalties against Trump or
his company, or even a ban on them being involved in certain types of
businesses.
Two of Trump's adult
children, Donald Jr. and Ivanka, gave depositions in recent days, two
people familiar with the matter said. The people were not authorized to
speak publicly and did so on condition of anonymity.
It's unclear whether Ivanka
Trump or Donald Trump Jr. invoked the Fifth Amendment. Eric Trump, their
brother, did so more than 500 times during a deposition in the same
investigation in 2020, according to court papers.
People generally don't have a
constitutional right to avoid questions in a civil lawsuit, but Trump's
legal team fought James' attempt to question him for months, arguing
that the district attorney's parallel investigation created a risk that
Trump could face criminal charges. Lawyers in James' office have
assisted with that criminal investigation.
Manhattan Judge Arthur
Engoron ruled that James' office had "the clear right" to question Trump
and other principals in his company — though Trump also had a right to
decline to answer questions because of the criminal case.
That criminal probe had
appeared to be progressing toward a possible criminal indictment, but
stalled after a new district attorney, Alvin Bragg, a Democrat, took
office in January. A grand jury that had been hearing evidence
disbanded. The top prosecutor who had been handling the probe resigned
after Bragg raised questions internally about the viability of the case.
Bragg has said his investigation is continuing.
WaPo did not mention the range of remedies available to the NY AG.
On the whole, coverage is parallel. WaPo emphasized from the outset Trump's using the Fifth repeatedly. Strib was softer in its opening paragraphs.
The use of extended quotes is unavoidable when wanting to compare and contrast. Given the Crabgrass headline and commentary, fair use for the purpose required extensive citation.
Strib also published this, where the focus is upon how Trump still has gravitas within the ranks of the Republican Party. Mid-item:
And on Wednesday, Trump invoked his Fifth Amendment
protection against self-incrimination as he testified under oath
Wednesday in the New York attorney general's long-running civil
investigation into his business dealings.
Trump's legal entanglements
represent a distraction at best for Republican candidates who'd rather
focus on President Joe Biden's leadership, sky-high inflation and
immigration troubles to help court moderate voters and independents in
the general election.
"Today, every Republican in
every state in this country should be talking about how bad Joe Biden
is, how bad inflation is, how difficult it is to run a business and run a
household," said Duncan, the Georgia lieutenant governor. "But instead,
we're talking about some investigation, we're talking about Donald
Trump pleading the Fifth, we're talking about Donald Trump endorsing
some conspiracy theorist."
Trump critics in both parties
are ready and willing to highlight Trump's shortcomings — and his
relationship with midterm candidates — as more voters begin to pay
attention to politics this fall.
"This is, and always has
been, Donald Trump's Republican Party," Democratic National Committee
Chair Jaime Harrison said in an interview, condemning "MAGA Republicans"
and their "extreme agenda" on abortion and other issues.
At the same time, the
Republican Accountability Project and Protect Democracy launched a $3
million television and digital advertising campaign this week across
seven swing states focused on Trump's role in the Jan. 6 insurrection.
The ads, which will run in Arizona, Georgia, Michigan, Nevada, North
Carolina, Pennsylvania and Wisconsin, feature testimonials from
Republican voters who condemn Trump's lies about nonexistent election
fraud that fueled the Capitol attack.
Efforts at spinning the news are really not news. Yet it is ongoing. Phrasing "Trump invoked his Fifth Amendment
protection against self-incrimination as he testified under oath
Wednesday" is spinning the plain fact the man did not answer a single question over hours, beyond giving his name.
He did not testify.
He appeared, and declined to testify. Someone reading only this second cited Strib item would be misled.
As of 11 am today, Thurs 8/11, Strib's hompage features only a video about Trump taking the Firth, not the report featured earlier in the morning:
00:48Former President Donald Trump met with investigators in New York for more than six hours on Wednesday.
with this image -
That is quite a slant from having earlier published and featured an AP text carry. That 11 am homepage had one other mention of Trump; this.
Daytime editors of Strib's online homepage must have differing views of what is news, relative to the over-night staff. An update? Only an update? Go figure.
________UPDATE________
For comparison, a third news outlet, in Florida where the premises search by the FBI happened, reporting on the New York deposition, and MSM outlet - also carrying the AP feed this morning:
Those financial dealings that the New York AG believes could have
been potentially fraudulent include properties such as Trump’s estate
Seven Springs in Westchester, New York, 40 Wall Street and his residence
at Trump Tower in New York City.
Trump has denied any wrongdoing and has said the investigation is politically motivated and a "witch hunt."
James'
office did not immediately respond to a request for comment on the
Trump's statement and his decision not to answer questions.
Trump's office, in a Wednesday morning press release, shared a video on Rumble that said: "Abusing the attorney general’s office to attack President Trump."
The
video shows James with a supporter saying, "Please sue him for us," and
James responding, "Oh we’re going to definitely sue him. We’re going to
be a real pain in the a—."
(omitted image - Felipe Ramales/Fox News Digital)
The video shows another clip of James saying she "will never be afraid to challenge this illegitimate president."
"We need to focus on Donald Trump," James says in another clip. "We need to follow his money."
The
video ends with another clip of James during her campaign saying: "This
illegitimate president — I look forward to going into the office of the
attorney general every day, suing him, and then going home."
Meanwhile,
simultaneously, the Manhattan District Attorney’s Office is conducting a
criminal investigation into the Trump Organization's financial dealings. That
investigation was launched by former Manhattan DA Cyrus Vance in 2019
and was focused on possible bank, insurance and tax fraud.
So, by the FOX barometer, STRIB DID NOT BIAS ITS COVERAGE WITH THE AP CARRY. WHY STRIB DOWN-FOCUSED THE EARLIER POST IN REVISING ITS HOMEPAGE IS AN EDITORIAL DECISION. WE HAVE NO EVIDENCE BEYOND THE DOWN-FOCUS ITSELF. POSSIBLY, STRIB MAY AGAIN EDIT ITS HOMEPAGE WITH THE DEPOSITION REFUSAL TO TESTIFY AGAIN NOTED.
This article — which is based on research that we conducted for a
client — discusses four questions relating to the intersection of the
Fifth Amendment and civil litigation. In later articles, we will discuss
the risk assessment process civil practitioners should undertake when a
client is faced with allegations of criminal wrongdoing.
In civil litigation in federal court, a witness’s
invocation of the Fifth Amendment may give rise to an adverse inference
“when independent evidence exists of the fact to which the party refuses
to answer.”
In the criminal context, no adverse inference is permitted from a
witness’s refusal to testify based on the Fifth Amendment. In federal
civil litigation, however, an adverse inference may be “drawn when
independent evidence exists of the fact to which the party refuses to
answer” — meaning that “an adverse inference can be drawn when silence
is countered by independent evidence of the fact being questioned, but
that same inference cannot be drawn when, for example, silence is the
answer to an allegation contained in a complaint.” Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1264 (9th Cir. 2000) (internal citations omitted).
Washington likewise permits an adverse inference in
civil litigation from a witness’s invocation of the Fifth Amendment
privilege and does not have the federal “independent evidence”
requirement.
“Once a witness in a civil suit has invoked his or her Fifth
Amendment privilege against self-incrimination, the trier of fact is
entitled to draw an adverse inference from the witness’s refusal to
testify.” Chaffee v. Keller Rohrback LLP, 200 Wash.App. 66, 83-84 (2017) (citing King v. Olympic Pipeline Co., 104 Wash.App. 338, 355-56 (2000) and Ikeda v. Curtis, 43 Wash.2d 449, 261 P.2d 684 (1953)).
“In a civil proceeding such an [adverse] inference is permissible,
where appropriate, not as a sanction or remedy for any unfairness
created by exercise of the privilege but simply because the inference is
relevant and outside the scope of the privilege.” Diaz v. Washington State Migrant Council,
156 Wash.App. 59, 85-86 (2011). “Fifth Amendment invocations by
corporate employees or principals may also result in an adverse
inference drawn against the corporation.” Id. (collecting
cases). “Moreover, invocation of the Fifth Amendment privilege may
supply an avenue for investigation by prosecutors.” Chaffee, 200 Wash.App. at 84.
In Olympic Pipeline, decided in 2000, the court noted that
“Washington courts have not addressed whether the trial court has
discretion to limit the adverse inference that follows from invocation
of the privilege.” 104 Wash.App. at 356. The Olympic Pipeline court
declined to resolve this question (which appears to remain open) but
observed that “ER 403 permits the court to exclude relevant evidence
where unduly prejudicial,” and that controlling precedent does not “[a]s
a logical matter … prohibit the usual analysis under the rules of
evidence.” Id.
Although Olympic Pipeline suggests that a trial court might
have discretion to exclude under ER 403 evidence that a witness took the
Fifth, Washington does not appear to have adopted the federal
“independent evidence” requirement, meaning the risk of an adverse
inference may be greater in Washington state court.
Oregon, by contrast, does not permit an adverse
inference in civil litigation from a witness’s invocation of the Fifth
Amendment privilege.
Oregon prohibits an adverse inference from the invocation of the
Fifth Amendment privilege, even in civil cases. Under Oregon Rule of
Evidence 513 (O.R.S. 40.290(1)), “[n]o inference may be drawn from a
claim of privilege.”
In John Deere Co. v. Epstein, 307 Or. 348 (1989), the Oregon
Supreme Court considered whether Rule of Evidence 513 permits an
adverse inference in a civil proceeding based on a witness’s invocation
of the Fifth Amendment right against self-incrimination. The Court’s
analysis in John Deere turned on whether invoking this right qualifies as a “claim of privilege” under Rule 513.
The Court found that an adverse inference is barred, even in civil
cases, because “claim of privilege” includes federal constitutional
privileges — not just privileges under state authority or listed in the
Oregon code. Thus, although such an adverse inference is allowed under
the U.S. Constitution, it is inconsistent with Rule 513.
John Deere is over 30 years old but has only been cited in a
handful of subsequent cases, none of which appears to address the
adverse inference question as applied to civil cases. It has not been
reversed or limited, and the current language of Rule 513 is materially
identical to the language in effect in 1989 (“[n]o inference may be
drawn from a claim of privilege”). John Deere thus appears to be good law.
[...] That is enough to show nuances apply, jurisdiction to jurisdiction. The authors of that item do not reference New York precedent, having likely not researched it. Whether the NY AG files in state or federal court is unknown, until she files.
________FURTHER UPDAE_______
This item discusses nuances in New York law regarding taking the Fifth is a civil case context. No extended quote, readers have the link, but the nub is:
If a defendant remains silent in a criminal case, no negative inference
may be drawn from the refusal to testify. It is always up to the
prosecution to prove guilt beyond a reasonable doubt. In a civil case,
on the other hand, an adverse inference may be drawn against a party who
refuses to testify on Fifth Amendment grounds.⁵ This means that a
judge or jury may consider the refusal to testify in assessing the
strength of the evidence offered by the opposing party.⁶
.......footnotes........
⁵Marine Midland Bank v. John E. Russo Produce Co., 50 N.Y.2d 31 (1980). ⁶El-Dehdan v. El-Dehdan, 114 A.D.3d 4 (2d Dep’t 2013), aff’d, 26 N.Y.3d 19.
