Donald Trump asserted his 5th amendment privilege against self-incrimination yesterday when questioned in the New York attorney general’s probe of the Trump Organization.

Some news reports suggest that Trump’s refusal to answer questions might make it harder to bring him to justice or was no big deal.

I believe that, even without knowing what questions were asked, Trump’s deposition will prove to be devastating.  Letitia James should now be able to obtain any civil remedy she desires in terms of monetary fines and even the “corporate death penalty” for all Trump entities.

When I practiced as a criminal defense counsel, I represented a defendant who was simultaneously being pursued criminally and civilly.

Here is the defendant’s dilemma.  The defendant is first sworn to tell the truth in his deposition.  To avoid answering questions under the 5th Amendment, the defendant must truthfully assert that answering a specific question “may tend to incriminate him.”  This means that the defendant is saying that a truthful answer will be evidence or lead to evidence of a crime committed by the defendant.

In a criminal case, the defendant’s assertion of the 5th amendment cannot be used against him as evidence of guilt.  

Not so, in a civil case. In New York, the evidence rule is that when a person refuses to answer a question on 5th amendment grounds, the finder of fact may infer that a truthful answer would be adverse to that person’s interests.

Here is where the skillful attorney uses the magic of “yes” “no” questions to put the witness in an untenable position.

For example, the press has reported that part of the evidence against Trump is that he claimed that his properties had a low value for tax purposes and of higher value for obtaining loans from banks.

So, a hypothetical line of questioning could have be:

Q. Mr. Trump, I am showing you a property valuation signed by you which says that Trump Tower was worth $50 million dollars.  Was that figure accurate?

A. I refuse to answer on the grounds that my answer may tend to incriminate me.

Adverse inference—the valuation is not accurate. If it was accurate, the truthful answer to the question was “Yes” and not incriminating.

Q. Did you know that the 50 million dollar figure was not true when you signed the valuation?

A. I refuse to answer on the grounds that my answer may tend to incriminate me.

Adverse inference—He knew it was false at the time. If he did not know it was inaccurate, the truthful answer to the question is “No” and not incriminating.

Several more step by step questions, leading to:

Q. Did you intend to defraud the people of New York of property taxes by using a false property valuation?

A.  I refuse to answer on the grounds that my answer may tend to incriminate me.

Adverse inference—He can no longer claim lack of intent to defraud because if he did not intend to defraud, the truthful answer to the question was “No” and not incriminating.

Lawyers working for Ms. James have millions of documents and have had months to construct questioning of the type illustrated above.  Trump reportedly asserted his 5th amendment privilege more than 400 times.

That is 400 adverse inferences which establish facts incriminating Trump and foreclosing potential defenses.

Nor will Trump be later able to repudiate the adverse inferences created by his testimony.  If he were, for example, to later testify that the 50 million dollar valuation was accurate, the next question would be:

Q. So Mr. Trump, when you were asked that question in your deposition and asserted the 5th amendment, you lied under oath, didn’t you?

Nowhere to run, nowhere to hide.

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This is a Creative Commons article. The original version of this article appeared here.

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