Trump invokes the Fifth Amendment in attacking the legal system as problems mount

Donald J. Trump has long derided public figures who invoke their constitutional right against self-incrimination, but on Wednesday he took full advantage of the Fifth Amendment.

For hours under oath, Mr. Trump sat across from New York State Attorney General Letitia James, answering every question asked by her investigators by repeating the phrase “the same answer” over and over.

Mr. Trump’s refusal to answer essentially any questions in the court-ordered deposition was an unexpected twist that could determine the course of Ms. James’ three-year civil investigation into whether the former president fraudulently inflated the value of its assets to secure loans and Other benefits.

It was also an extraordinary moment in an extraordinary week, even by the former president’s standards. Two days after his home was searched by the FBI in an unrelated investigation, Mr. Trump invoked his Fifth Amendment right while openly questioning the legitimacy of the judicial process — as he does with the nation’s electoral system — and insulting a law enforcement who was sitting just a few feet away.

Mr. Trump’s only detailed comment, according to people familiar with the proceedings, was an all-out attack on the attorney general and her investigation, which he called a continuation of “the biggest witch hunt in the history of our country.”

“I once asked, ‘If you’re innocent, why do you accept the Fifth Amendment?'” he said as he read a prepared statement that overlapped significantly with what he released to the public. “Now I know the answer to that question.” He said he was targeted by lawyers, prosecutors and the news media, and it left him with “absolutely no choice” but to do it.

Ms. James is now left with a crucial decision: whether to sue Mr. Trump or seek a settlement that could result in a significant financial penalty. And while refusing to answer questions may have offered the safest route for the former president, it could strengthen Ms James’ hand in the coming weeks.

In a statement on Wednesday, a spokesman for Ms. James said: “Attorney General James will pursue the facts and the law wherever they lead. Our investigation is ongoing.”

The clash, the first time the former president has gone head-to-head with Ms. James, who has become his chief antagonist in New York, came at a particularly perilous time for Mr. Trump. On Monday, the FBI searched his Florida home and his private club in Palm Beach, Fla., as part of an investigation into sensitive material he took with him when he left the White House.

The search was a disturbing reminder of the many questions swirling around the former president about his conduct in the final weeks of his presidency. In addition to the investigation that prompted the FBI manhunt, federal prosecutors questioning witnesses about his involvement in efforts to reverse his election loss; a special House committee held a series of hearings linking him more closely to the January 6 attack on the Capitol; and a Georgia district attorney is investigating potential election meddling by Mr. Trump and his allies.

Ms. James is conducting a civil investigation and cannot bring criminal charges against the former president. But the Manhattan district attorney’s office is conducting a parallel criminal investigation into whether Mr. Trump fraudulently inflated the valuations of his properties.

That criminal investigation influenced Mr. Trump’s decision not to answer questions, a person familiar with his thinking said.

Any misstep could breathe new life into that investigation, which lost momentum earlier this year, and District Attorney Alvin L. Bragg said he would monitor the interview closely.

There were other compelling reasons for Mr. Trump to keep his mouth shut. If the attorney general had found that any of Mr. Trump’s answers contradicted evidence from his investigation, the discrepancy could have triggered a separate perjury investigation.

But his decision could have a significant impact on any trial if the investigation into Ms James leads to a trial. Civil juries can in many cases draw an adverse inference when the defendant invokes his Fifth Amendment privilege, unlike in criminal cases, where the exercise of the right against self-incrimination cannot be held against the defendant.

And if Ms. James prevails in a civil lawsuit, a judge could impose large financial penalties on Mr. Trump and restrict his business operations in New York.

With that threat in hand, Ms. James’ lawyers could use Mr. Trump’s refusal to answer questions as leverage in settlement negotiations.

The silence could also hurt Mr. Trump politically at a time when he has hinted that he will join the presidential race in 2024; this may raise questions about what he may be trying to hide.

For years, Mr. Trump has treated whatever happens on the legal front with his business as a potential opportunity to shape public perception. Maybe not this time. The New York attorney general’s investigation is largely a legal issue, and the failure to answer questions was primarily a legal maneuver.

Still, the former president has long considered himself his best spokesman, and those who questioned him in the past, as well as some of his own advisers, believed he was unlikely to stay silent.

Mr. Trump has mocked witnesses who refuse to answer questions, once noting at a rally that refusing to answer questions under oath is an indication of guilt that the mob relies on. “You see the crowd take over Fifth,” he said. (In fact, he had exercised his Fifth Amendment right before, refusing to answer questions in a deposition taken in connection with his divorce from his first wife, Ivana Trump.)

After being persuaded not to take questions from his legal team, Mr. Trump left Trump Tower at 8:30 a.m. on Wednesday. After waving to a small crowd that had gathered outside the building, he headed downtown to Ms. James’ office in a convoy of black SUVs arriving around 9 a.m.

His testimony began shortly thereafter and began with the introduction of Mrs. James and the investigation. She then turned the question over to one of her firm’s attorneys, Kevin Wallace.

One of Mr. Trump’s lawyers, Ronald P. Fischetti, said that for about four hours, Mr. Trump answered only a question about his name.

Mr. Trump’s legal team has not alerted the attorney general that he plans to invoke his Fifth Amendment rights. This account of the testimony is based on interviews with people familiar with the proceedings, some of whom spoke on condition of anonymity to answer questions about confidential proceedings.

After being asked for his name, the former president read his statement announcing that intention on the record. In the statement, he called Ms. James, who was sitting a few feet away from him, a “renegade prosecutor.”

After reading the statement, Mr. Trump began repeating the words “same answer.” It was the “same answer” until the lawyers broke for lunch, and the “same answer” after that until just after 3pm the interview ended and Mr Trump left the building. In all, he said those words more than 400 times, a person familiar with the interview said.

The interview was significantly shorter than that of his daughter Ivanka Trump, who did not finish answering questions until the evening when she was questioned days earlier.

Neither she nor Donald Trump Jr., who was also interviewed in recent days, invoked the Fifth Amendment. But Eric Trump, who was interviewed in October 2020, cited the amendment hundreds of times.

Since March 2019, Ms. James’ office has been investigating whether Mr. Trump and his company improperly inflated the value of his hotels, golf clubs and other assets. Mr. Trump has long rejected an inquiry from Ms. James and has fought hard against sitting down for questioning under oath, but was forced to do so after multiple judges ruled against him this spring.

Shortly after the questioning began Wednesday morning, Mr. Trump’s office released a statement saying he would invoke his Fifth Amendment right, explaining that he “declines to answer questions pursuant to the rights and privileges afforded to every citizen under the constitution of the United States’.

The statement he released publicly and what he read at the start of the interview specifically linked his refusal to answer questions to the FBI’s search of his home, portraying the actions as part of a larger conspiracy. (The two investigations are unrelated.)

Seeking to fend off a lawsuit from Ms. James — and in negotiating a possible settlement with her investigators — Mr. Trump’s lawyers are likely to argue that real estate appraisals are a subjective process and that his company simply estimated the value of his properties without the intention of artificially inflating them.

While Ms. James has alleged in court documents that the Trump Organization provided false appraisals to banks to secure lucrative loans, Mr. Trump’s lawyers may argue that they were sophisticated financial institutions that made huge profits from the deals you are with Mr. Trump.

Mr. Trump’s deposition represents the culmination of months of legal wrangling. In January, Mr. Trump asked a New York judge to quash a subpoena from Ms. James seeking his testimony and personal documents. The judge, Arthur F. Engoron, sided with Ms. James and ordered the Trumps to testify, a decision the appeals court upheld.

And at Ms. James’ request, Judge Engoron held Mr. Trump in contempt of court, finding that he had failed to comply with the terms of Ms. James’s subpoena seeking his documents. It was an embarrassing two-week episode that forced Mr. Trump to pay a $110,000 fine.

Mr Trump is no stranger to facing questions under oath, having once boasted that he had given “over 100 depositions”. A lawyer who once questioned Mr Trump described him as “absolutely fearless in his testimony”.

Until now, he rarely missed an opportunity to answer questions – or argue with his questioners. He once told a lawyer that her questions were “very stupid.”

Mr. Trump also weighed in on the pros and cons of having the president answer questions under oath. In 1998, he suggested that President Bill Clinton should have relied on the Fifth Amendment during that era’s impeachment inquiry.

“It’s terrible for a president to take the Fifth Amendment, but he probably should have,” Mr. Trump said.

Maggie Haberman, Little Sean, Nate Schweber and Jasmine Sheena contributed reporting.