Last week brought significant legal challenges to former president Donald Trump. First on Monday, the FBI executed a search warrant at his home at Mar-a-Lago, seizing classified documents he had removed from the White House. Then on Wednesday, sitting for a deposition in a civil investigation conducted by New York State Attorney General Letitia James, Trump reportedly asserted his Fifth Amendment privilege to all 440 questions posed. While the two stories may not appear linked—one concerns a civil probe into Trump’s businesses and the other a criminal investigation of Trump’s post-White House handling of classified government documents—they are actually closely interrelated in a critical way. That is, Trump’s need to invoke the Fifth Amendment in lieu of providing information in his own defense in a civil case tells us much about his future ability, or lack of same, to present a “lack of criminal intent” or “state of mind” defense to potential criminal charges.
In that regard, media coverage of the Trump state and federal criminal investigations have often focused on the need to establish his criminal intent. According to these analyses, the criminal intent element of the government’s burden of proof is a significant hurdle in any prosecution of the former president, and as such, extreme caution is required, as Trump will be able to claim he believed (mistakenly or not) everything he did was proper and legal.
Yet every criminal case requires proof of criminal intent, and despite this burden, the federal government wins over 90 percent of the prosecutions it brings. While it is certainly true that prosecuting a former president brings an avalanche of unique factors into the picture, from the narrow perspective of courtroom reality, as a former federal prosecutor and white-collar criminal defense lawyer for more than four decades, I believe Trump would be an especially vulnerable defendant. Why? Because—as he showed in last week’s civil deposition—he cannot effectively testify in his own defense to rebut the overwhelming evidence against him.
As noted, Trump’s response in the James investigation into his finances underscores this reality. In an inquiry narrowly limited to his finances, his lawyers have apparently chosen to have him invoke his privilege against self-incrimination to all relevant questions. This decision could not have come easily, as in a civil case, his invocation of privilege can (and will) be used as evidence against Trump, increasing his exposure to financial catastrophe. Yet, the decision was made that the risk of testifying was greater than the risk of poverty, quite a decision for someone who has always based his (and other people’s) personal worth on personal wealth.
The decision to invoke is especially significant since all Trump had to do is what both witnesses and defendants do regularly in tax and financial cases—claim to have relied on highly paid accountants and trusted advisors in filling out tax returns and financial statements and admit (with deep embarrassment) not to have paid close enough attention to the contents. Indeed, this is the potential defense the Manhattan District Attorney’s reportedly took into consideration in deciding not to proceed criminally. Whether or not this would be a winning defense (and I doubt that it would), at least it offers some version of events that might shift responsibility, both civil and criminal, to others.
If the former president cannot handle this narrow, relatively malleable area of inquiry, how does he address a much larger, more dangerous universe in the multiple criminal investigations that are focusing on him? How does he undo the multiple, provable lies he has told over time, such as the claim that at times and places unknown, he secretly and magically de-classified top secret documents found at Mar-a-Lago, or explain away years of highly questionable conduct, such as asking Georgia’s top election official to “find 11,780 votes,” now under scrutiny by Fulton County District Attorney Fani Willis? Trump would likely hurt himself addressing these matters on direct examination, let alone survive cross-examination.
It is important to understand that in a criminal case, once a defendant takes the stand, his or her credibility is placed directly at issue, potentially opening the door to relative events and circumstances beyond the four corners of an indictment. The list of questions Donald Trump would be unable to answer is so long that the hardest task for whomever would cross-examine him would be to whittle it down to the best three days’ worth of material. Which is why, as in the civil suit, he is unlikely testify in a criminal trial.
Attorney General Merrick Garland has many incredibly serious concerns in the unique, complex, high-wire situation in which he finds himself. The former president’s ability to personally articulate a meaningful defense to well-founded charges the attorney general is considering should not be one of them. Simply put, Donald Trump would end up being a very powerful witness against himself, if he decided to testify at all. The people in the best position to know, Trump’s own defense team, have certainly come to that conclusion.
