Can Eric Trump Take The Fifth In Response To The New York Attorney General's Subpoenas?

Yes With An If, And No With A But

Last Friday New York’s Attorney General filed an action seeking to compel The Trump Organization, Inc. and Eric Trump, among others, to comply with her investigatory subpoenas. The action is pending in the Supreme Court of the State of New York, which is what New Yorkers characteristically call their trial court. Those subpoenas seek documents and testimony aimed at determining whether The Trump Organization — with, perhaps, the President’s knowledge — inflated the value of assets in order to claim higher tax deductions for charitable donations and in order to secure loans. The Trump Organization has refused to produce numerous documents, and several individuals, in response to the subpoenas. In connection with many requests they have asserted the attorney-client privilege; in connection with Eric Trump, they have refused to present him for testimony “pursuant to those rights afforded to every individual under the Constitution.”

Can the Trump Organization do that? Can Eric Trump do that?

Yes, in part, but there are consequences. Let’s look at just the most incendiary issue — whether Eric Trump can assert his Fifth Amendment privilege to avoid testifying and producing documents in response to the Attorney General’s investigative subpoenas.

Eric Trump, like everyone else whose testimony is sought in America, has a Fifth Amendment right to refuse to testify. The right is broad and forgiving. He can invoke it even if he has run his mouth on the same issue in different legal proceedings and/or bars before, and it protects him not just from answering very specifically incriminating questions like “did you do the RICO, Eric?” but also any question that could provide a “link” in the “chain” of evidence eventually leading to his prosecution for a crime. The Attorney General’s brief claims this is just an administrative proceeding and that no referral has been made to any criminal authorities, nor has the Attorney General coordinated with any such authorities. It is one of the most facially unconvincing assertions I have ever seen in a legal brief. I chortled. But it doesn’t matter; Eric Trump can take the Fifth in any criminal, civil, or administrative proceeding where he is asked questions that might supply that link in the chain.

That’s not to say he can take the Fifth cost-free. Leave aside the social and political costs of taking the Fifth, which are legion. There can be civil and administrative consequences too. I’m no expert on New York state law, but commonly litigants can face a variety of penalties for taking the Fifth in a non-criminal proceeding — they can be prohibited from testifying or offering evidence or taking discovery, their invocation can often be used against them and negative inferences drawn from it by the finder of fact, and they can be precluded from pursuing their own affirmative claims or defenses in the action. Moreover, if an entity like the Trump Administration makes someone like Eric Trump their officer or custodian of records or other designated official, the entity can face those consequences when the person takes the Fifth, unless the entity replaces them with someone who can answer the questions. The entity itself, as a corporation, has no Fifth Amendment right against self-incrimination.

Moreover, if the Attorney General wants to make it unpleasant for Eric Trump to take the Fifth, they can. In general, you can’t make a “blanket” assertion of the Fifth Amendment privilege. Whether it’s legitimate — that is, whether the answer to the question could possibly incriminate you — is a question-by-question analysis. If someone wants to challenge your invocation, they need a record of every question you refused to answer. So it’s common to make the witness repeatedly assert their Fifth Amendment privilege in response to each and every question — and simply refusing to show up, as Eric Trump allegedly did, is not legal. I would know; I once flew to Texas to depose a federal prisoner, who took the fifth for three hours straight.

So: bottom line, Eric Trump can take the Fifth and refuse to answer questions — and likely should — but it will make it very difficult for him, or the Trump Organization, to defend any administrative or civil case.

But wait. This isn’t just about testimony. The Attorney General is also demanding documents. What about that? Can Eric Trump assert his Fifth Amendment privilege to refuse to produce documents?

The answer is “rarely,” and certainly not in connection with documents he’s holding for the corporation. In general, you can’t refuse to turn over pre-existing evidence and documents even if they incriminate you. That’s because turning over such documents isn’t considered testimony — you’re not being forced to testify against yourself in violation of the First Amendment, you’re simply releasing pre-existing materials. But there are narrow exceptions.

First, you can take the Fifth and refuse to turn over documents when doing so would inevitably personally concede their existence and your possession and knowledge of them — like a subpoena to the sole proprietor of a company. To overcome that, the government just needs to give you what’s called “act of production immunity” — they can use the documents against you, but they can’t use your production of the documents against you.

Second, under more recent law, you can take the Fifth in response to demands for documents that serve as the functional equivalent of questions. So, for instance, when the government asked Webster Hubbell to turn over documents reflecting “direct or indirect sources of money provided to” him, the Supreme Court found that the document demands made Hubbell “use the contents of his own mind” to select responsive documents — in effect, to testify about the contents and significance of the documents. Hence, the government can’t say “produce all documents showing that in 2018 you were aware of the false statements.” The key idea is that the production becomes testimonial — and thus covered by the Fifth Amendment — when it requires you to make admissions about the significance of the documents.

It’s unlikely that these exceptions help Eric Trump, and they certainly don’t help the Trump Organization. The Trump Organization, a corporation, doesn’t have Fifth Amendment rights. It can’t refuse to turn over documents on that basis. It can’t assert any of Eric Trump’s rights for him. Moreover, the Trump Organization specifically designated Eric Trump as the custodian of the records — it can’t say “well, this dude has the records, but he’s taking the Fifth, so sorry.” That’s a very Trumpian defense tactic but not one that will succeed. Eric Trump agreed to let the Trump Organization make him an officer and custodian of records, so he can’t plausibly demand act of production immunity — the production is an admission by the organization, not him. Moreover, since he’s being asked as a custodian of record, it would be the corporation, not Eric, choosing which documents are responsive to the Attorney General’s demands, so his production would not be testimonial.

So: Eric can refuse to testify, but he has to show up and refuse question by question, and he almost certainly can’t refuse to produce documents on behalf of the corporation. Also: it strikes me as inadvisable to make Eric Trump your corporate witness or custodian of documents. Just saying.

This analysis doesn’t touch the attorney-client privilege arguments, which make up most of the brief. We’ll see how those play out.

—Ken