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- Donald Trump issued a statement Aug. 10 saying that he would be taking the Fifth Amendment during questioning by the New York attorney general’s office. Attorneys are engaged in a civil investigation into Trump’s business practices.
- In his statement Trump acknowledged that he had previously questioned why an innocent person would take the Fifth Amendment.
- Trump has made statements for and against taking the Fifth Amendment, depending upon the persons involved.
Former President Donald Trump invoked the Fifth Amendment during questioning by the New York attorney general’s office as part of a civil investigation into his business practices. The amendment protects against self-incrimination.
His decision to not answer questions stood in contrast to statements he made in the past about people who took the Fifth; he once said the option was for people who were in the mob.
Time for a look at Trump’s statements about the Fifth Amendment on our Flip-O-Meter. The rating is not making a value judgment about a politician who changes positions on an issue — our purpose on the Flip-O-Meter is to document if the person’s position has changed.
Trump has expressed a mixture of opinions about the Fifth Amendment depending upon his position about the person at the center of the relevant legal case. In 2016, he repeatedly criticized Hillary Clinton’s aides for taking the Fifth Amendment over questions about her emails. But in August, as Trump found himself at the center of multiple investigations, he was in favor of taking the Fifth.
New York Attorney General Letitia James opened an investigation to explore whether "Trump’s annual financial statements inflated the values of Trump’s assets to obtain favorable terms for loans and insurance coverage, while also deflating the value of other assets to reduce real estate taxes."
In his 1990 divorce from Ivana, Trump invoked the Fifth Amendment, wrote Wayne Barrett in his 1992 book, "Trump: The Greatest Show on Earth."
"Donald preaches in every speech, including the one announcing his presidential bid, about his devotion to the Second Amendment. But it was the Fifth Amendment that was his favorite when he was deposed in the divorce with Ivana, invoked 97 times to be exact, mostly in response to questions about ‘other women,’" Barrett wrote.
In a 1998 interview on MSNBC’s "Hardball with Chris Matthews," Trump suggested that President Bill Clinton should have taken the Fifth Amendment in a deposition about Paula Jones, a woman who accused Clinton of sexual harrasment. The Jones investigation led independent prosecutor Kenneth Starr to Clinton’s affair with White House intern Monica Lewinsky.
Trump said: "And I’m not even sure that he shouldn't have just gone and taken the Fifth Amendment and said, ‘Look, I don't get along with this man, Starr. He's after me. He's a Republican, he’s this, he’s that,’ and you know, just taken the Fifth Amendment. It's a terrible thing for a president to take the Fifth Amendment, but he probably should have done it."
In 2014, when actor Bill Cosby was facing sexual assault allegations, Trump tweeted his advice: "if you are innocent, do not remain silent. You look guilty as hell!"
During multiple rallies and political events in 2016, Trump criticized Clinton aides for taking the Fifth Amendment.
At an Iowa rally, Trump said: "Her staffers taking the Fifth Amendment, how about that?" He added, "You see the mob takes the Fifth. If you're innocent, why are you taking the Fifth Amendment?"
In Nevada, Trump said, "Her staffers took the Fifth Amendment and got immunity deals. It's worse than Watergate."
In Colorado, Trump said, "Her staffers took the Fifth. So many people took the Fifth Amendment there was nobody left!"
During a presidential debate, Trump said: "When you have your staff taking the Fifth Amendment, taking the Fifth so they’re not prosecuted, when you have the man that set up the illegal server taking the Fifth, I think it’s disgraceful. And believe me, this country thinks it’s — really thinks it’s disgraceful, also."
In an Aug. 10 statement following his deposition, Trump explained why he took the Fifth Amendment:
"I once asked, ‘If you’re innocent, why are you taking the Fifth Amendment?’ Now I know the answer to that question. 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. If there was any question in my mind, the raid of my home, Mar-a-Lago, on Monday by the FBI, just two days prior to this deposition, wiped out any uncertainty. I have absolutely no choice because the current administration and many prosecutors in this country have lost all moral and ethical bounds of decency.
"Accordingly, under the advice of my counsel and for all of the above reasons, I declined to answer the questions under the rights and privileges afforded to every citizen under the United States Constitution."
Multiple investigations into Trump saw action this week. He faces criminal investigations by the Justice Department and Fulton County prosecutors in Georgia. Earlier this week, the FBI executed a search warrant at his Mar-a-Lago estate. It is unknown whether or when Trump would face criminal charges.
Answers in civil investigations can be used in a criminal case, said Kendall Coffey, a former U.S. attorney in Miami now in private practice. "Individuals have a right to assert the Fifth to avoid making comments that may be incriminating. This may be a civil investigation, but it doesn’t limit potential use of his testimony in a criminal investigation."
Trump’s explanation for taking the Fifth Amendment because he is being targeted by prosecutors is a reason many people give for asserting their Fifth Amendment privilege, Ohio State University law professor Ric Simmons said.
"They claim that even though they have nothing to hide, a prosecutor will be able to use the testimony against them in an unfair way to charge or convict them of something they did not do. This is almost always an unfounded claim; there are very few cases in this country of a prosecutor ‘targeting’ an individual or acting in bad faith to use a person's testimony against them. Trump's case is no different."
Trump has a complicated relationship with the Fifth Amendment and his position comes down to how he feels about who is taking it.
A biography of Trump said he took the Fifth Amendment in his 1990 divorce case. He also expressed that Bill Clinton should have taken the Fifth. In 2014, however, he had the opposite advice for Bill Cosby, telling him silence would make him look guilty.
In 2016, Trump criticized Hillary Clinton aides for taking the Fifth Amendment. But when Trump sat for a deposition with lawyers for the New York attorney general, he took the Fifth because he said he is a target of an "unfounded, politically motivated witch hunt." Trump is at the center of multiple investigations that are years in the making, and we don’t yet know whether he will be charged with any crimes.
Trump has changed his view on the Fifth Amendment depending upon the situation. His latest stance represents a partial change, we rate it a Half Flip.
PolitiFact researcher Caryn Baird contributed to this article.
Wayne Barrett’s book, Trump: The Greatest Show on Earth, 1992
NBC News, Donald Trump Comments On Bill Clinton And The Lewinsky Scandal, 1998
Donald Trump, Tweet, Nov. 20, 2014
Factbase videos, Speech: Donald Trump in Council Bluffs, IA, Sept. 28, 2016
Donald Trump, Remarks at the Reno-Sparks Convention Center in Reno, Nevada, Oct. 5, 2016
Rightside Broadcasting Network, Donald Trump Rally in Loveland, Colorado, Oct. 3, 2016
AP, Trump and the Fifth Amendment: It’s complicated, May 23, 2017
Washington Post, ‘If you’re innocent, why are you taking the Fifth?’ Trump said — years after invoking it himself, May 23, 2017
PolitiFact, Impeachment over, Donald Trump faces more investigations, Feb. 13, 2021
Telephone interview, Kendall Coffey, former U.S. Attorney in the Southern District of Florida now at Coffey Burlington law firm, Aug. 10, 2022
Email interview, Ric Simmons, law professor at Ohio State University, Aug. 10, 2022
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