When former president Donald Trump reportedly invoked his Fifth Amendment right against self-incrimination more than 400 times in a deposition on Wednesday, he put himself in familiar company.
Numerous current and former Trump advisers and associates have also pleaded the Fifth in response to more than 300 questions in various civil and criminal investigations connected to Trump’s political and business operations.
“To date, more than 30 witnesses called before this committee … have invoked their Fifth Amendment rights against self-incrimination,” Rep. Liz Cheney (R-Wyo.), vice chair of the Select Committee to Investigate the January 6th Attack on the U.S. Capitol, said at its fourth public hearing.
Invoking the Fifth Amendment is a constitutional right, not an indication of guilt in criminal cases. However, the number of witnesses taking the fifth has confounded investigators who wonder why some of Trump’s associates are declining to answer even the most straightforward questions.
Donald Dripps, a law professor at the University of San Diego, said the privilege is intended to protect both the “noble and ignoble” from unfair prosecutorial tactics. Still, he said, asserting that privilege as a high-profile political figure will draw added scrutiny and criticism.
“There are consequences,” he said. “People draw their own conclusions about what’s going on.”
Among the most notable Trumpworld figures who have pleaded the Fifth to the Jan. 6 congressional committee in recent months:
- Attorney John Eastman — who allegedly conspired with Trump to try to overturn the results of the 2020 presidential election — pleaded the Fifth in response to 146 separate questions, according to court filings.
- Jeffrey Clark, a Justice Department official who Trump considered naming acting attorney general in order to advance plans to overturn the electoral results, pleaded the Fifth more than 125 times, according to Rep. Adam Kinzinger (R-Ill.).
- Former National Security Adviser Michael Flynn pleaded the Fifth in response to multiple questions from the committee.
- Former Trump adviser Roger Stone also pleaded the Fifth in response to questions from the committee.
- Conspiracy theorist and Infowars host Alex Jones said he pleaded the Fifth “almost 100 times” in responding to the committee.
Videotaped depositions before the Jan. 6 committee show witnesses have used the Fifth Amendment to avoid even the most basic questions. Flynn pleaded the Fifth in response to questions about whether the violence on Jan. 6, 2021, was morally or legally justified and whether he believes in the peaceful transition of power.
And in a previously unreported, unlisted video on the Jan. 6 committee’s YouTube page identified by Grid, Clark is seen pleading the Fifth in response to whether he was a Justice Department official on Jan. 6, 2021, and whether he knows Rep. Scott Perry, R-Pa. — the congressman who, according to other testimony offered to the Jan. 6 committee and a separate Senate investigation, introduced him to Trump.
Members of the Jan. 6 committee have expressed frustration with the use of the Fifth Amendment by witnesses in their investigation.
“I’ve seen the Fifth Amendment privilege asserted more in the past month than I can believe,” Rep. Jamie Raskin (D-Md.), who was a constitutional law professor before joining Congress, said in February. “I probably heard the Fifth Amendment mentioned more than the First Amendment in my lifetime now, with all of the people asserting the Fifth.”
Unlike some of his associates, Trump’s use of the Fifth Amendment on Wednesday came amid a civil investigation by the New York attorney general’s office into his business dealings, rather than a congressional investigation or criminal proceeding.
Dripps said “no good lawyer” would have advised Trump to testify in the New York deposition, given the stakes if the former president were to make a false statement.
“If you can stay out of a potential perjury trap, that is certainly sound legal advice,” said Dripps, who has published research about the Fifth Amendment.
Trump, himself, has a long track record of wielding the Fifth Amendment as a cudgel against his political foes.
- “The mob takes the Fifth. If you’re innocent, why are you taking the Fifth Amendment?” Trump said on the campaign trail in Iowa in 2016.
- “When you have your staff taking the Fifth Amendment, taking the Fifth so they’re not prosecuted. When you have the man that set up the illegal server taking the Fifth, I think it’s disgraceful,” Trump said of his opponent Hillary Clinton in a September 2016 presidential debate. “And believe me, this country thinks it’s — really thinks it’s disgraceful, also.”
- “Have you seen what’s going on in front of Congress? Fifth Amendment, Fifth Amendment, Fifth Amendment,” Trump riffed at another September 2016 campaign event. “Horrible. Horrible. And will anything happen? That’s going to be the question. We’re going to find out.”
In a statement on Wednesday, Trump acknowledged his about-face.
“I once asked, ‘If you’re innocent, why are you taking the Fifth Amendment?’” Trump said in the statement. “Now I know the answer to that question. When your family, your company, and all the people in your orbit have become the targets of an unfounded, politically motivated Witch Hunt supported by lawyers, prosecutors and the fake news media, you have no choice.”
The flip-flop brought Trump’s position on the Fifth Amendment in line with a view he had expressed decades earlier.
In a 1998 CNBC interview reacting to then-President Bill Clinton’s grand jury deposition in the Paula Jones lawsuit, Trump suggested Clinton would have been better off if he had attacked the investigator as partisan and pleaded the Fifth.
Trump told then-CNBC host Chris Matthews: “I’m not even sure that he shouldn’t have just gone in and taken the Fifth Amendment and said, ‘Look, I don’t get along with this man [independent counsel Kenneth] Starr. He’s after me. He’s a Republican.’”
“It’s a terrible thing for a president to take the Fifth Amendment,” Trump added. “But he probably should have done it.”
Thanks to Alicia Benjamin for copy editing this article.