New York Attorney General Letitia James has investigated former President Donald Trump and his real-estate business for over a year. The probe, conducted in conjunction with the Manhattan District Attorney's Office, began as a civil investigation before James announced last May that it had become criminal.
Today, Trump was forced to sit for a deposition at James' Manhattan office. In a statement, he indicated that he had "declined to answer the questions," invoking his Fifth Amendment right not to be forced to incriminate oneself.
The invocation marked a notable break from Trump's previous thoughts on taking the Fifth, most notably during the 2016 campaign: During a presidential debate against Hillary Clinton, he called it "disgraceful" that members of her staff had refused to testify before congressional committees investigating Clinton's use of a private email server. Days later, he told a rally crowd, "The mob takes the Fifth. If you're innocent, why are you taking the Fifth Amendment?"
Trump addressed the about-face in today's statement: "I once asked, 'If you're innocent, why are you taking the Fifth Amendment?' Now I know the answer to that question." He cited the FBI's Monday raid of Mar-a-Lago, his Palm Beach home, as the last straw of "an unfounded, politically motivated Witch Hunt supported by lawyers, prosecutors, and the Fake News Media." He further claimed that "the current Administration and many prosecutors in this Country have lost all moral and ethical bounds of decency," thereby requiring him to take the Fifth "under the advice of my counsel."
In truth, Trump's history on the right against self-incrimination is more complicated than that: In 1990, during divorce proceedings from his first wife Ivana, he invoked the right 97 times in response to questions about potential adultery. In 1998, days after President Bill Clinton admitted an affair with a White House intern before a grand jury, Trump said in an interview, "I'm not even sure that he shouldn't have just gone in and taken the Fifth Amendment."
In 2017, a Democratic National Committee email cited Trump's statements tying "taking the Fifth" to the mob, after Trump defended Michael Flynn, his former national security advisor, who invoked the Fifth by refusing to testify before Congress about communications with Russian officials.
It's not surprising that Trump would change his tune on an aspect of the law depending on its application. But looking askance at the Fifth Amendment is a bipartisan tradition.
In 1986, when Oliver North refused to testify before hearings about Iran Contra, Sen. John Glenn (D–Ohio) complained, "I can't think of anything that is going to polarize Capitol Hill more or make this into a political football any more than people taking the Fifth or stonewalling it and preventing all the information from coming out."
In 2013, when IRS chief Lois Lerner invoked the Fifth and refused to testify about her agency's overzealous investigation of conservative nonprofits, Republican National Committee Chairman Reince Preibus said it was a sign that "there's clearly something serious the American people are not being told." Rep. Stephen Lynch (D–Mass.) similarly promised there would be "hell to pay" if Lerner and others did not testify.
But the right not to be compelled to incriminate oneself is as inherent to the Constitution as the rights to speech or assembly. It stems from America's founding when Puritans who had experienced forced interrogations in England made sure to codify the right into the new nation's Constitution. The American legal system is founded upon the premise that the government has to prove a person's guilt beyond a reasonable doubt. The right against self-incrimination ensures that the government must meet that burden of proof without requiring a defendant to participate.
Sometimes, the interview itself is part of the prosecutorial strategy: As former federal prosecutor Ken "Popehat" White wrote in Reason, "arguably the primary purpose [of an interview] is to provoke the foolish interviewee into lying," thereby committing a prosecutable offense that can be used as leverage. Since most people would not know what to expect, "even an honest, circumspect person faces grave peril in such an interview."
By invoking his Fifth Amendment right today, Trump may be a hypocrite. But that doesn't mean he is wrong to do so.