Ivanka Trump’s Silence Could Hurt Father’s Fraud Trial Defense

Emma Grant

Ivanka Trump could land her family in deep trouble if she pleads the Fifth Amendment in her father Donald Trump’s New York fraud trial, former federal prosecutor Barbara McQuade has said.

Ivanka is resisting a subpoena to give evidence, but legal experts told Newsweek that she may soon have to make an appearance in the case.

Speaking to Charles Coleman Jr. on MSNBC on Sunday, McQuade said that the protection from self-incrimination offered by the Fifth Amendment will not protect a defendant in a civil case.

Ivanka Trump was originally named as a defendant in New York Attorney General Letitia James’ lawsuit. It accuses Donald Trump, his children and the Trump Organization of fraudulently inflating the value of their assets on financial documents to obtain more-favorable business deals and increase the former president’s net worth.

Trump, who is the frontrunner for the 2024 Republican presidential nomination, has denied any wrongdoing and has called the trial politically motivated. Newsweek has sought comment from attorneys for Ivanka and Donald Trump.

An appeals court dismissed Ivanka from the case in June and said the claims against her were barred by the statute of limitations. Her lawyers argued in court submissions last week that Ivanka is no longer a defendant in the case and should therefore not have to give deposition testimony.

Invoking Fifth Amendment Could Backfire

McQuade added that, while a witness may use the Fifth Amendment in a civil case to protect themselves from criminal indictment, the civil court judge is entitled to draw an adverse inference from their silence when making a decision in the civil case.

“Anything they say under oath could be used against them in some subsequent criminal case,” McQuade said. “If they believe they have exposure, they can invoke it [the Fifth Amendment].

But what’s different about a civil case from a criminal case is that in this case, Judge [Arthur] Engoron could use that invocation to draw an adverse inference against the witness.

“So, if they refused to answer a question, he can assume the worst about what the answer would have been,” McQuade added.

Ivanka Avoiding Subpoena Service

Ivanka Trump is trying to avoid being served with a subpoena in the New York fraud case while her husband, Jared Kushner, is embroiled in controversy about his financial gain from the Trump presidency.

Federal attorney Colleen Kerwick, who practices in New York, told Newsweek that the New York court will eventually rule that Ivanka Trump has been served with a subpoena, despite the attempts to avoid this.

Ivanka Trump may then plead her Fifth Amendment right to silence rather than reveal details of how Kushner allegedly benefitted from the Trump presidency through a $2 billion investment from a Saudi Arabian government fund.

Kerwick said: “Ivanka is likely to continue to try to move to quash the subpoena or, at the very least, limit the scope of the subpoena. When that fails, she could answer every question by pleading the Fifth Amendment.”

Potential Motivation for Silence

Kerwick added that Ivanka Trump may plead the Fifth “because anything she says has the potential to open the door to questioning about her and her husband’s business dealings with the Saudis.”

Kushner has been embroiled in controversy over the $2 million investment his private-equity fund received six months after leaving the White House.

In September, Saudi Arabian Crown Prince Mohammed bin Salman said the investment would not be affected by a possible second Trump presidency.

In an interview with Fox News’s Bret Baier, the crown prince defended the government-controlled Public Investment Fund’s (PIF) investment in the firm that Kushnerβ€”Donald Trump’s son-in-lawβ€”started after leaving his post as a White House adviser.

Limits on Pleading the Fifth in Other Cases

Professor Peter Shane, a New York University lecturer who specializes in the American presidency, said that prosecutors may seek to limit witnesses’ use of the Fifth Amendment in the two federal criminal cases that Donald Trump is facing.

Mark Meadows, Trump’s former White House chief of staff, may be called to give evidence in the federal criminal case Trump is facing in Washington DC for allegedly tampering with the 2020 presidential election.

However, Meadows is concerned that his evidence may be used against him in a separate indictment in Georgia, where both he and Trump are accused of interference with the counting of votes in the 2020 election. Both he and Trump have pleaded not guilty to all charges.

Shane said that Meadows may be prevented from staying silent in the federal case against Trump. “The extent of immunity may be subject to bargaining with a witness, but it need not be. A prosecutor can essentially prevent a witness from ‘taking the Fifth’ by unilaterally immunizing his or her testimony,” Shane said.

In such a scenario, Meadows might be prevented from pleading the Fifth Amendment in the federal case against Trump, while being granted immunity from prosecution for his evidence.

Immunity Deal Reportedly Secured

Media reports said that Meadows has weighed up his options and is already talking to Smith’s team. An ABC News report said Meadows secured an immunity deal before giving evidence in Special Counsel Jack Smith’s election-tampering investigation. Bloomberg carried a similar report.

Potential Outcomes and Implications

The outcome of Ivanka Trump’s attempts to avoid testifying could set an important precedent. If she pleads the Fifth, it could backfire and lead to adverse inferences by the judge that hurt her father’s defense. However, if she testifies openly, it could reveal compromising details about financial dealings by her and her husband.

How Meadows and other witnesses navigate their Fifth Amendment rights across multiple cases will also bear watching. Their testimony could prove pivotal in the ongoing investigations and trials surrounding Donald Trump.

The final rulings in these matters will likely have far-reaching implications for Trump’s legal jeopardy and the 2024 presidential race. Ivanka Trump’s silence or statements could tip the scales in the New York civil fraud trial, while Meadows’ testimony could bolster the criminal case over election interference.

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Emma Grant is a highly regarded legal news expert with a deep understanding of constitutional law and its implications in contemporary society. With her extensive background in legal journalism and analysis, Emma Grant has established herself as a trusted authority on the intersection of law, policy, and society.