Trump, The New York Attorney General, And The Future – Above the Law

My crystal ball is usually cloudy.

Today, it cleared up.

I know exactly what the world will look like (on at least one issue) in late January 2022. Im sufficiently confident in that prediction that Im revealing it publicly here in mid-December.

As you probably know, the New York Attorney General has issued a subpoena to Donald Trump asking him to give a deposition in a civil matter on January 7, 2022. Trump will be asked in that deposition about certain business practices of The Trump Organization.

What will happen now?

Heres the easy part of my prediction: That deposition will not occur or, at a minimum, will not occur in a meaningful way.

Trump would be nuts to give testimony under oath on these issues, given the criminal investigations being pursued by the Manhattan and Westchester district attorneys. (Hed probably be nuts to give testimony under oath for other reasons, too, but Im setting those other reasons aside for the moment.) So no meaningful deposition will occur.

Trumps lawyers will think about ways to postpone or cancel the deposition. Those lawyers might be more clever than I am, but its hard to think of a legitimate reason not to have the deposition. Trump is no longer the president, so he cant object that he doesnt have time to be deposed. The Attorney General says shell ask Trump only about his companys business practices not decisions Trump made while he was president so theres no obvious claim of executive privilege. The deposition can probably take place.

(Trump can, of course, become ill on January 6, postponing the deposition for a week or two. But its hard to see a legal ground for blocking the deposition in its entirety.)

When Trump appears for the deposition, he will invoke the Fifth Amendment right to avoid self-incrimination in response to essentially every question. There are pending criminal investigations on subjects closely related to the Attorney Generals inquiry, and Trump has every right, legally, to assert the Fifth Amendment.

Politically, however, is a whole other thing. It will look very bad if Trump says that he cant testify because giving testimony might incriminate him in criminal wrongdoing. I assume that Trump will invoke the Fifth, as advised by his lawyers, but hell hate doing it.

Heres the interesting part of my prediction: As soon as Trump leaves the deposition room, hell start saying publicly that he didnt in fact do anything illegal at all. Although he invoked the Fifth Amendment to protect himself against self-incrimination, there was no need to do that. Hes as innocent as the day is long. The Attorney Generals deposition was a perjury trap, and Trump wasnt going to play that game. The Manhattan and Westchester district attorneys are engaged in political witch-hunts, and theyre looking for any bogus excuse to indict him. Trump didnt do anything wrong, and he invoked the Fifth Amendment solely to protect against political retaliation.

At that point, there will be a small legal, and a massive political, uproar. The legal dispute will be over whether someone who insists he committed no crimes, and says so publicly, has the right to invoke the Fifth Amendment to avoid incriminating himself against the crimes he didnt commit.

The political uproar will be much louder, with those on the left saying that Trump is basically conceding that he committed crimes, and those on the right explaining that invoking the Fifth Amendment in these circumstances implies nothing at all.

Thats where the world will stand as of roughly February 1, 2022.

You read it here first.

MarkHerrmannspent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeons Guide to Practicing LawandDrug and Device Product Liability Litigation Strategy(affiliate links). You can reach him by email atinhouse@abovethelaw.com.

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Trump, The New York Attorney General, And The Future - Above the Law