Explained: What is the Fifth Amendment, invoked by Donald Trump to not answer questions in business dealings probe case

As vociferous as Trump has been in defending himself in written statements and on the rally stage, legal experts say the same strategy could have backfired in a deposition setting because anything he says could potentially be used in the parallel criminal investigation pursued by the Manhattan district attorney.

Fifth Amendment is a constitutional right that gets high-profile exposure in settings from US Congress to TV crime shows, but there are nuances. Here’s what it means to “plead (or take) the Fifth.”

What is ‘the fifth’?

The Fifth Amendment to the US Constitution establishes a number of rights related to legal proceedings, including that no one “shall be compelled in any criminal case to be a witness against himself”. In the most direct sense, that means criminal defendants don’t have to give damning testimony in their own cases. But it has come to apply in non-criminal contexts, too.

What is the reasoning behind this?

“It reflects many of our fundamental values and most noble aspirations,” the Supreme Court wrote in 1964. The central one, is preventing people from being tortured into confessing or being shoehorned into a “cruel trilemma of self-accusation, perjury or contempt” of court. Many decades earlier, the court also questioned the reliability of confessions made under duress.

Does the amendment only apply to criminal cases?

Over time, the Fifth Amendment’s protections have been understood to cover witnesses — not just defendants — in criminal and civil courts and other government settings. The Supreme Court has even held that Fifth Amendment rights protected the jobs of public employees who were fired after refusing to testify in investigations unless they got immunity from prosecution. The Fifth Amendment also underpins the famous Miranda warning about the right to remain silent and have an attorney on hand while being questioned in police custody.

So are there any limitations?

Under what has become the legal standard, the witness has to be facing a genuine risk of criminal prosecution, said Paul Cassell, a criminal law professor at the University of Utah. That means prosecution on any charge in any US court. There are sometimes disputes over whether the right is being invoked inappropriately. The questioning side can ask a judge to declare that someone needs to answer or face contempt of court and possible penalties.

Cassell said the courts have generally thought that they should give the benefit of the doubt to someone who might be criminally prosecuted, rather than force someone to testify and then have them regret it.

Can someone who takes the fifth answer only some of the questions?

Yes, it’s not necessarily all-or-nothing. But even deciding to answer selectively could be risky: Responding to one question can enable the other side to argue that the witness can’t refuse to answer other, related questions. Another concern is that seemingly safe questions could be meant to build evidence about an allegation that’s not on the witness’ radar yet.

Does invoking the fifth work against you?

Legally, it depends. In a criminal case, prosecutors can’t comment on a defendant’s refusal to testify, and a jury can’t be advised that it’s OK to take defendants’ silence as a sign of guilt. The Supreme Court has said that allowing that inference penalizes defendants for simply availing themselves of a constitutional protection. But in civil cases, jurors generally are allowed to hold silence against a defendant or witness.

But there’s the court of public opinion. “Does it look bad? In the general public’s understanding, yes,” says Howard University criminal law professor Lenese Herbert. “But that’s just a result of poor civics education.” The former federal prosecutor often reminds her students that while jurors might want to hear a defendant’s side of the story, it’s a defense attorney’s job to make sure the jury understands that the client has the right not to take the stand.

Trump himself, years ago, repeatedly suggested that only people with something to hide avail themselves of the protection. “The mob takes the Fifth,” he declared once.

What had team Trump said about this?

Trump lawyer Ronald Fischetti had earlier said that unless legal immunity is granted for the ex-president’s deposition — a term for sworn pre-trial questioning out of court — he’d advise invoking the Fifth Amendment “because that’s what the law provides”.