Trump's Fifth Amendment plea could actually be used against him in court — here's how
President Donald J. Trump participates in a tax reform kickoff event at the Loren Cook Company, Wednesday, August 30, 2017, in Springfield, Missouri. (Official White House Photo by Joyce N. Boghosian)

One of the most fundamental due process rights in America is the Fifth Amendment right to refuse to incriminate yourself — a right former President Donald Trump exercised more than 400 times in a deposition for New York Attorney General Letitia James' fraud lawsuit, video of which was released this week. "Anyone in my position not taking the Fifth Amendment would be a fool, an absolute fool," said Trump in the video, after years of publicly claiming that only "the Mob" uses the Fifth Amendment.

But while Trump might have protected himself from self-incrimination, that doesn't mean that taking the Fifth couldn't do him any legal harm, wrote Jordan Rubin for MSNBC on Wednesday. Specifically, he said, in civil cases, juries are allowed to infer liability from taking the Fifth — which is what Trump is facing.

"Why can invoking the Fifth Amendment be used against someone in a civil case but not in a criminal case?" said Rubin. "First, let’s look at the text of the amendment itself, which states that a person can’t be 'compelled in any criminal case to be a witness against himself.' And in 1976, the Supreme Court observed that in criminal cases, 'the stakes are higher and the State’s sole interest is to convict.' In that same case, the justices noted 'the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.'"

"So while everyone has the right to invoke constitutional protections against self-incrimination in criminal cases, Trump shouldn’t expect those protections when he faces a civil jury this fall," concluded Rubin. "Though, of course, he also faces several criminal probes in which, as the Supreme Court put it, 'the stakes are higher.'"

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James' fraud suit against Trump and his family seeks $250 million in damages from unlawful proceeds that violated state and local laws, and also seeks to ban him from doing business in New York.

Trump initially responded with a countersuit that attempts to shield his revocable trust from James, but later dropped that litigation after a federal judge warned that it was frivolous.