When lawyers from the New York Attorney General’s office recently questioned former President Donald Trump about his businesses, he “took the Fifth” more than 440 times, repeatedly asserting “same answer.” The Fifth Amendment to the U.S. Constitution states that no person “shall be compelled in any criminal case to be a witness against himself.” Most people know that when you invoke your Fifth Amendment right to silence and refuse to answer questions, no one can use it against you in a criminal case. However, the implications in a civil case, such as those now faced by Trump, are much less well known. Lawyers, especially those involved in fraud litigation, or where the government is conducting a parallel investigation or prosecution, should carefully consider the implications and strategize about all available options before advising a client simply to “plead the Fifth” to avoid answering questions in a civil matter.
Who Can Plead the Fifth in a Civil Matter and How
Despite the Fifth Amendment’s focus on testimony in criminal cases, the U.S. Supreme Court has held that the right against self-incrimination extends to civil cases as well. See McCarthy v. Arndstein, 266 U.S. 34 (1924). A witness or defendant in a civil case may assert the Fifth Amendment right against self-incrimination if she can show that there is a real possibility that criminal authorities could use the information sought in a pending or future criminal case against her.