(CNN Spanish) — Former President Donald Trump, who in 2016 said that taking advantage of the Fifth Amendment is a resource used by the mafia, did just that this Wednesday: he declined to answer questions from the New York attorney general, invoking a rule that, since the 18th century, prevents a person from being forced to testify against himself.

Trump attended the office of New York Attorney General Letitia James as part of a more than three-year civil investigation seeking to determine whether the Trump Organization misled lenders, insurers and tax authorities by providing them with misleading financial statements.

“On the advice of my attorney and for all the reasons stated, I declined to answer questions under the rights and privileges afforded to every citizen under the Constitution of the United States,” Trump said in a statement.

What does it mean to abide by the Fifth Amendment?

The Fifth Amendment is usually invoked in order to avoid answering specific questions.

This amendment, ratified in 1791, protects a person from being “compelled in any criminal case to be a witness against himself” and was a reflection of the witness-protection efforts of a kind of inquisitorial Starry Chamber of 19th-century England. XV.

This is exactly what the amendment says: “No person shall be held liable for a capital offense or other infamous felony if he is not indicted by a grand jury, except in cases brought in the land or naval forces, or in the militia, when in service in time of war or public danger; nor shall any person, for the same crime, be subjected to two situations of danger to his life or physical integrity; nor shall he be compelled in any criminal case to testify against himself, nor shall he be shall deprive him of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.”

The “self-incrimination clause” generally means that a witness cannot be compelled to make statements that they believe may be negative or used against them.

The Fifth Amendment Limits of Privilege

Based on the privilege granted by the Fifth Amendment, people can refuse to answer questions, refuse to make potentially incriminating statements or refuse to testify at trial in any criminal case, according to the Cornell University School of Law.

They may also refuse to produce or turn over documents that are self-incriminating, even if subpoenaed to do so (as opposed to documents found in a search or seizure and documents produced voluntarily and required by law to be preserved, such as federal income tax filings). a business).

The privilege only runs for people. Corporations, companies and associations cannot benefit as such from the Fifth Amendment.

And besides, the privilege only refers to testimonial evidence. Physical evidence such as blood tests, writing samples, or fingerprints are outside the privilege.

Does it have a negative connotation to invoke the Fifth Amendment?

Although invoking the Fifth Amendment may have negative implications depending on the circumstances, the Supreme Court has long held the right not to incriminate oneself to be a venerable part of the Constitution and has sought to ensure that the silence of a witness is not equated with guilt. .

Trump 2016 vs. Trump 2022

The former president has mocked the Fifth Amendment as the haven of mobsters.

“If they’re innocent, why are they taking the Fifth Amendment?” he said when he was a candidate in 2016, complaining about aides to his then-Democratic opponent, Hillary Clinton, facing investigations into their use of a private email service. when I was Secretary of State. “The mob welcomes the Fifth,” Trump declared.

In his statement this week, Trump addressed that question. “I once asked, ‘If they’re innocent, why are they taking the Fifth Amendment?'” Trump said in his statement. And he continued: “Now I know the answer to that question.”

“When your family, your business, and everyone in your orbit have become the target of an unfounded, politically motivated Witch Hunt supported by lawyers, prosecutors, and the Fake News Media, you have no choice,” he wrote in his statement. according to Reuters.

The declarations (or the absence of declarations) present a high risk for the former president. If James sues him and the case goes to trial, the jury could draw an “adverse inference” against him for not answering questions, which could result in a harsher sentence if he is found guilty. If he answers questions, he could open the door to potential civil and criminal liability.

With reporting from CNN’s Paul LeBlanc and Kara Scannell.



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