Former President Donald Trump’s decision to invoke his Fifth Amendment right against self-incrimination leaves the New York attorney general, Letitia James, with a crucial decision: whether to sue Trump or to seek a settlement that could extract a significant financial penalty.
While Trump’s silence might have been the safest route for him, it could strengthen James’ hand in the weeks to come, whatever her next move.
If James, a Democrat, files a lawsuit against him, Trump’s decision to keep quiet could be held against him at trial. In some civil cases, jurors are instructed that they can take into account a defendant’s decision to invoke the Fifth Amendment in weighing the facts. They may infer, for instance, that the defendant is hiding something, a legal concept known as a “negative or adverse inference.” In criminal cases, however, jurors are told that exercising the right against self-incrimination cannot be held against the defendant.
And if James prevails at a civil trial, a judge could impose steep financial penalties on Trump and restrict his business operations in New York.
With that threat in hand, James’ lawyers could use Trump’s refusal to answer questions as leverage in settlement talks.
James would most likely seek a settlement that includes some financial penalty for Trump and that possibly forces his company to adopt changes to the ways it operates. And a settlement agreement would very likely accuse Trump and his company of significant wrongdoing, including the fraudulent inflation of the value of his golf clubs, hotels and other properties on the financial statements he provided to banks in hopes of obtaining loans.
James revealed in a court filing this year that Mr. Trump’s longtime accounting firm, which compiled those statements, had cut ties with him. The firm, Mazars, essentially retracted nearly a decade’s worth of Trump’s financial statements.
In seeking to fend off a lawsuit from James, Trump’s lawyers are most likely to argue that valuing real estate is a subjective process and that his company simply estimated the value of his properties, without intending to artificially inflate it.
While James has contended in court papers that the Trump Organization provided bogus valuations to banks, Trump’s lawyers may argue that those banks were sophisticated financial institutions capable of evaluating the properties on their own, and that they turned a hefty profit from their dealings with Trump.
And while Trump’s decision not to answer questions may complicate his defense, there are numerous legal reasons for him to have done so.
Most immediately, Trump could have unintentionally aided the attorney general’s case against him by providing substantive answers. He also could have unwittingly aided the parallel criminal investigation into similar conduct being conducted by the Manhattan District Attorney’s Office. The district attorney, Alvin L. Bragg, had said he would monitor the interview closely.
And if the attorney general finds that any of Trump’s responses contradicted evidence from her inquiry, the inconsistencies could prompt a separate perjury investigation.
Finally, while jurors in civil trials can in many cases take a defendant’s refusal to answer questions into account, they are not automatically granted the right to do so. Whether jurors might draw a negative inference is subject to litigation and could cause delays.
This article originally appeared in The New York Times.