Former President Donald J. Trump’s decision to invoke his Fifth Amendment right against self-incrimination leaves New York Attorney General Letitia James with a crucial decision: whether to sue Trump or seek a settlement which can result in a significant financial penalty .
While Mr Trump’s silence may have been the safest path for him, it could strengthen Ms. James’ hand in the coming weeks, whatever her next move.
If Mrs. James, a Democrat, files a lawsuit against him, Mr Trump’s decision to remain silent could be used against him during the trial. In some civil cases, jurors are instructed to consider a defendant’s decision to invoke the Fifth Amendment when considering the facts. For example, they may conclude that the suspect 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 enforced against the accused.
And if Ms. James prevails in a civil lawsuit, a judge could impose hefty financial penalties on Mr. Trump and restrict his New York business activities.
With that threat in hand, Ms. James’ lawyers could use Mr. Trump’s refusal to answer questions as leverage in settlement talks.
Ms. James would most likely seek a settlement that would include a financial fine on Mr Trump and potentially force his company to make changes to the way it operates. And a settlement agreement would most likely accuse Mr. Trump and his company of significant misconduct, including fraudulently inflating the value of his golf clubs, hotels and other properties on the financial statements he provided to banks in hopes of getting loans.
Ms. James revealed in a court filing this year that Mr. Trump’s longtime accounting firm, which prepared these statements, had severed ties with him. The company, Mazars, has essentially revoked nearly a decade on Mr Trump’s financial statements.
In their bid to fend off a lawsuit from Ms. James, Mr. Trump’s attorneys will likely argue that real estate valuation is a subjective process and that his company simply estimated the value of his properties, with no intention of doing so. artificially inflating it.
While Ms. James has argued in court documents that the Trump organization provided fake valuations to banks, Mr. Trump’s lawyers can argue that those banks were sophisticated financial institutions that were able to self-evaluate the properties, and that they provided a significant amount of money. have made a profit from their dealings with Mr Trump.
And while Mr Trump’s decision not to answer questions may complicate his defense, there are plenty of legal reasons for him to do so.
Most immediately, Mr. Trump could have inadvertently aided the Attorney General’s case against him by providing substantive answers. He is also alleged to have unknowingly contributed to the parallel criminal investigation into similar behavior being conducted by the Manhattan District Attorney’s office. The District Attorney, Alvin L. Bragg, had said he would closely monitor the interview.
And if the Attorney General finds that any of Mr. Trump’s responses contradict the evidence from her investigation, the inconsistencies could prompt a separate perjury investigation.
Finally, while jurors in civil lawsuits can in many cases take into account a defendant’s refusal to answer questions, they are not automatically given the right to do so. Whether jurors can reach a negative conclusion is subject to lawsuits and may cause delays.