Under oath for hours, Trump derides civil inquiry by invoking Fifth Amendment

Donald Trump has long derided public figures who invoke their constitutional right against self incrimination, but on Wednesday he took full advantage of the Fifth Amendment.

For hours under oath, Trump sat across from the New York state attorney general, Letitia James, responding to every question posed by her investigators by repeating the phrase “same answer” over and over again.

Trump’s refusal to respond substantively to any questions in the court-ordered deposition was an unexpected twist that could determine the course of James’ three-year civil investigation into whether the former president fraudulently inflated the value of his assets to secure loans and other benefits.

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It was also an extraordinary moment in an extraordinary week, even by the former president’s standards. Two days after his home was searched by the FBI in an unrelated investigation, Trump invoked his Fifth Amendment right while openly questioning the legitimacy of the legal process as he has with the nation’s electoral system and insulting a law enforcement official sitting just a few feet away.

Trump’s only detailed comment, people with knowledge of the proceeding said, was an all-out attack on the attorney general and her inquiry, which he called a continuation of “the greatest witch hunt in the history of our country.”

“I once asked, ‘If you’re innocent, why are you taking the Fifth Amendment?’” he said while reading from a prepared statement, which overlapped significantly with one he released to the public. “I now know the answer to that question.” He said that he was being targeted by lawyers, prosecutors and the news media, and that left him with “absolutely no choice” but to do so.

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James is now left with a crucial decision: whether to sue Trump, or seek a settlement that could extract a significant financial penalty. And while declining to answer questions might have offered the safest route for the former president, it could strengthen James’ hand in the weeks to come.

In a statement on Wednesday, a spokeperson for James said, “Attorney General James will pursue the facts and the law wherever they may lead. Our investigation continues.”

The encounter, the first time the former president had faced off directly with James, who has become his chief antagonist in New York, came at a particularly perilous moment for Trump. On Monday, the FBI searched his Florida home and private club in Palm Beach, Florida, as part of an investigation into sensitive material that he took when he left the White House.

The search was an embarrassing reminder of the multiple inquiries swirling around the former president in connection with his conduct in the final weeks of his presidency. In addition to the investigation that triggered the FBI’s search, federal prosecutors are questioning witnesses about his involvement in efforts to reverse his election loss; a House select committee held a series of hearings tying him more closely to the January 6, 2021, attack on the Capitol; and a district attorney in Georgia is investigating potential election interference on the part of Trump and his allies.

James is conducting a civil inquiry, and she cannot file criminal charges against the former president. But the Manhattan district attorney’s office has been conducting a parallel criminal investigation into whether Trump fraudulently inflated valuations of his properties.

That investigation factored into Trump’s decision not to respond to questions, a person with knowledge of his thinking said.

Any misstep could have breathed new life into that inquiry, which lost momentum earlier this year, and the district attorney, Alvin L Bragg, had said he would monitor the interview closely.

There were other compelling reasons for Trump to hold his tongue. If the attorney general had found that any of Trump’s responses contradicted evidence from its inquiry, the inconsistency could have prompted a separate perjury investigation.

But his decision could have a significant impact on any trial if James’ investigation leads to a lawsuit. Jurors in civil matters can in many cases draw a negative inference when a defendant invokes his or her Fifth Amendment privilege, unlike in criminal cases, where exercising the right against self-incrimination cannot be held against the defendant.

And if James prevails at civil trial a judge could impose steep financial penalties on Trump and restrict his business operations in New York.

With that threat in hand, James’ lawyers could use Trump’s refusal to answer questions as leverage in settlement talks.

Having stayed silent could also hurt Trump politically at a time when he is hinting that he will join the 2024 presidential race; it could raise questions about what he might be trying to hide.

For years, Trump has treated everything that happens on a legal front with his business as a potential opportunity to shape public perception. Perhaps not this time. The investigation by the New York attorney general is very much a legal problem, and not answering questions was, first and foremost, a legal maneuver.

Still, the former president has long considered himself his best spokesman, and those who had questioned him in the past, as well as some of his own advisers, believed he was unlikely to stay quiet.

Trump has ridiculed witnesses who have refused to answer questions, once remarking at a rally that refusing to answer questions under oath was an indication of guilt relied upon by the mafia. “You see the mob takes the Fifth,” he said. (In fact, he has exercised his Fifth Amendment right before, refusing to answer questions in a deposition taken in connection with his divorce from his first wife, Ivana Trump.)

Having been persuaded not to answer questions by his legal team, Donald Trump departed Trump Tower at 8:30 am on Wednesday. After waving to a small crowd that had gathered outside the building, he headed downtown to James’ office with a convoy of black SUVs, arriving around 9 am

His deposition began soon after and opened with James introducing herself and the investigation. She then turned over the questioning to one of her office’s lawyers, Kevin Wallace.

One of Trump’s lawyers, Ronald P Fischetti, said that over the course of about four hours, Trump answered only a question about his name.

Trump’s legal team had not alerted the attorney general that he planned to invoke his Fifth Amendment rights. This account of the deposition is based on interviews with people familiar with the proceeding, some of whom spoke on the condition of anonymity to answer questions about a confidential proceeding.

After being asked his name, the former president read his statement announcing that intention into the record. In the statement, he called James, who was sitting a few feet away, a “renegade prosecutor.”

After reading the statement, Trump began repeating the words “same answer.” It was “same answer” until the lawyers broke for lunch, and “same answer” after that until, shortly after 3 pm, the interview ended and Trump left the building. Altogether, he spoke those words more than 400 times, a person with knowledge of the interview said.

The interview was significantly shorter than that of his daughter Ivanka Trump, who did not finish answering questions until the evening when she was questioned days earlier.

Neither she nor Donald Trump Jr, who was also interviewed in recent days, invoked the Fifth Amendment. But Eric Trump, who was interviewed in October 2020, cited the amendment hundreds of times.

Since March 2019, James’ office has investigated whether Donald Trump and his company improperly inflated the value of his hotels, golf clubs and other assets. Trump has long dismissed the inquiry from James, and fought hard against sitting for questioning under oath, but was compelled to do so after multiple judges ruled against him this spring.

Shortly after questioning began on Wednesday morning, Trump’s office released the statement saying he would invoke his Fifth Amendment right, explaining that he “declined to answer the questions under the rights and privileges afforded to every citizen under the United States Constitution.”

The statement he released publicly and the one he read at the start of the interview explicitly linked his refusal to answer questions to the FBI’s search of his home, casting the actions as part of a grander conspiracy. (The two investigations are not linked.)

In seeking to fend off a lawsuit from James and in negotiating a possible settlement with her investigators Trump’s lawyers would likely argue that valuing real estate is a subjective process, and that his company simply estimated the value of his properties, without intending to artificially inflate them.

While James has contended in court papers that the Trump Organization provided bogus valuations to banks to secure favorable loans, Trump’s lawyers might argue that those were sophisticated financial institutions that turned a hefty profit from their dealings with Trump.

The deposition of Trump represented the culmination of months of legal wrangling. In January, Trump asked a judge in New York to strike down a subpoena from James seeking his testimony and personal documents. The judge, Arthur F Engoron, sided with James and ordered the Trumps to testify, a ruling that an appellate court upheld.

And at James’ request, Engoron held Trump in contempt of court, finding that he had failed to comply with the terms of James’ subpoena seeking his documents. It was an embarrassing two-week episode that compelled Trump to pay a $110,000 penalty.

Trump is no stranger to facing questions under oath, having once boasted that he has sat for “over 100 depositions.” A lawyer who once questioned Trump described him as “completely fearless in a deposition.”

Until now, he rarely passed up an opportunity to answer questions or spar with his questioners. He once told a lawyer that her questions were “very stupid.”

Trump has also opined on the pros and cons of a president answering questions under oath. In 1998, he suggested that President Bill Clinton should have relied on the Fifth Amendment during that era’s impeachment investigation.

“It’s a terrible thing for a president to take the Fifth Amendment, but he probably should have done it,” Trump said.