Thread by @SethAbramson

(THREAD) If you're wondering when Donald Trump can—or can't—plead the Fifth Amendment to avoid answering Mueller's questions, this is the thread for you.

It's a complicated issue, so as an attorney I'll try to unpack it in a digestible way. I hope you'll share this with others.

1/ First, understand that the Fifth Amendment *isn't* a magic wand—a witness in a civil or criminal case who wants to avoid answering questions for a frivolous reason such as inconvenience or a fear of public speaking can't simply say "Fifth Amendment!" and walk off with a smirk.

2/ An attorney can only advise a client to plead the Fifth Amendment when the requisite constitutional standard has been met: that the witness has a reasonable basis to believe that a responsive answer to a given question could incriminate them (i.e., lead to criminal charges).

3/ Note that nothing that follows in this thread should be construed as legal advice by any person or entity. If you need legal assistance, contact an attorney in your area. The discussion that follows here is for academic purposes only, and is not directed to—or for—any reader.

4/ The Fifth Amendment cannot be used to protect a person against embarrassment, inconvenience, or even a civil lawsuit. The danger that the person who wishes to plead the Fifth Amendment must apprehend in refusing to answer a given question *must* be *criminal prosecution*.

5/ Needless to say, while an attorney can only advise a client to plead the Fifth Amendment under appropriate circumstances, and s/he must advise them that they cannot plead the Fifth under inappropriate circumstances, the individual wishing to plead the Fifth gets the final say.

6/ The reason for this is that a lawyer never knows for certain what a client has or hasn't done—and therefore can't compel a client to *not* plead the Fifth when the client is saying that they have every right to do so under the law (as it has explained to them by their lawyer).

7/ Right now you might be wondering, "Okay, but if the client gets the final say, why can't Donald Trump just ignore whatever advice his attorneys may give about how the Fifth Amendment works or doesn't work and just use it to avoid answering questions he doesn't want to answer?"

8/ The first distinction we must make is between *defendants* and *witnesses* in criminal cases. In sum, a defendant—someone who has actually been *charged with a crime*—has a much, much broader opportunity to plead the Fifth Amendment than does a mere witness in a criminal case.

9/ A defendant, in pleading the Fifth Amendment, avoids being asked *any* questions by a prosecutor (or a criminal suspect who is in custody *and* being interrogated can, by asserting their Fifth Amendment privilege against self-incrimination, shut down any unwanted questioning).

10/ For a prosecutor to get testimony from a person they've charged who's now taken the Fifth, they must grant them immunity (there are a few other obscure scenarios in which it might be possible, but for our purposes immunity is the main one, though irrelevant in Trump's case).

11/ I say it's "irrelevant in Trump's case" because *Trump isn't a defendant*. He's merely a witness. And witnesses who've been subpoenaed to testify can't issue a blanket refusal to answer questions pursuant to the Fifth Amendment—they must do so on a question-by-question basis.

12/ Having said this, if a prosecutor thinks a person they haven't charged with a crime is likely to *validly* plead the Fifth in response to almost *any* question the prosecutor would hope to ask, the prosecutor may excuse the witness from pleading the Fifth before a grand jury.

13/ Just so, if a prosecutor plans on charging a witness—thus making them a defendant—they're unlikely to, before doing so, attempt to call the witness to testify before a grand jury, and may even be prevented from doing so by various regulations. That may be the case with Trump.

14/ That said, nothing prevents a prosecutor from calling a witness to testify before a grand jury and deciding later on it's appropriate to charge them (assuming this wasn't the plan all along). Depending on the charge Mueller is looking at, Trump could be in this boat as well.

15/ Here's what I mean: as to the Obstruction charge against Trump Mueller is investigating, as it's clear Mueller intends to or is seriously considering charging Trump with Obstruction, his ability to subpoena him before a grand jury to answer questions on that may be limited.

16/ On the other hand, there may be other charges—such as potential aiding and abetting computer crimes charges against Don Jr.—for which Trump is at this point simply a relevant witness. Mueller's free rein to seek answers from Trump about that scenario could be quite different.

17/ What complicates all this is Trump has even attempted to illegally cover up crimes *he* didn't commit—e.g., writing a false statement for Don Jr.—and many answers he could give as a witness on one issue would provide Mueller info that might incriminate him on something else.

18/ My point is that when lawyers on television imply that Trump can avoid any questioning from Mueller by (a) refusing to conduct a voluntary interview, and then (b) responding to any subsequent grand jury subpoena by pleading the Fifth, they're saying Trump's guilty all around.

19/ That is, they're saying—without saying it—they think Trump's guilty of Obstruction as to all potential charges Mueller is investigating *and* that Trump headed up a criminal conspiracy, meaning almost any answer he gives on anything Mueller's looking at would incriminate him.

20/ The reverse of this is if Trump, as a witness—not a defendant or target-lettered witness—tries to plead the Fifth for *all* questions Mueller may ask him, and his attorneys don't move to withdraw in protest, it *is* making a major statement about what crimes Trump committed.

21/ What Trump could do, instead, is refuse a voluntary interview, dare Mueller to subpoena him, try to quash the subpoena (mainly a delaying tactic) with a farcical claim that POTUSes can't be subpoenaed, then agree to testify but say he'll plead the Fifth on *certain* subjects.

22/ Again, this is all assuming Mueller hasn't charged Trump with anything and has not yet made the *decision* to charge him with something—as if either of those two things have happened, regs would prevent Mueller from attempting to get testimony from Trump as to those charges.

23/ You may, from all I've said, have intuited the following: that if Mueller is nevertheless trying to get testimony from Trump, it must be because he considers Trump a necessary witness in his investigation and has not yet made a final charging decision as to (say) Obstruction.

24/ Just so, Trump's lawyers may be keeping him from speaking to Mueller not only because Trump is a Perjury machine—he can't help but lie, even under oath—but also because they think either Mueller won't subpoena Trump or Trump will have a valid Fifth Amendment claim if he does.

25/ Moreover, Trump's lawyers could claim that if Trump has a valid Fifth assertion as to the Obstruction charge because Mueller has signaled such a charge is forthcoming, he can refuse to answer *any* questions Mueller may have—even on other topics—as they could incriminate him.

26/ Indeed, if you told me right now Mueller *will* refer an Obstruction charge on Trump to the DOJ—which I fully believe is the case—it'd be hard for me to imagine *any* questions Mueller could then ask Trump, on any issue, which wouldn't put him in danger of self-incrimination.

27/ And of course in that scenario there's a good chance either DOJ regs or Trump's rights as a prospective defendant would—respectively—keep Mueller from subpoenaing him or allow Trump to make a blanket Fifth Amendment assertion, anyway.

So you see how complicated this all is.

28/ In the unlikely event that Mueller successfully subpoenaed Trump under an understanding that Trump was just a witness in the non-Obstruction case Mueller was then investigating, and would only assert the Fifth as to questions relating to Obstruction, here's how it would work:

29/ Mueller would be able to challenge any Fifth Amendment assertion Trump made from the witness stand before a grand jury if he believed the assertion was made on a topic entirely unrelated to Obstruction (the issue Trump's lawyers would've told Mueller Trump won't speak about).

30/ Of course, Trump's lawyers wouldn't be able to advise him to plead the Fifth on a non-Obstruction question in that scenario (presumably, Trump would ask to check in with his lawyers—who wouldn't be in the room—were he asked a question and unsure if he could plead the Fifth).

31/ If Trump and his lawyers agreed Trump could plead the Fifth in response to a given non-Obstruction question and Mueller then disputed the validity of Trump's assertion, theoretically Mueller could seek a Motion to Compel from a judge—arguing improper invocation of the Fifth.

32/ Here's what you should have taken from this thread so far:

(1) This is all so f*cking confusing that there's a *damn good reason* no legal pundit on TV is willing to touch the "Can Trump invoke the Fifth in this situation?" question.

(2) Trump is unlikely *ever* to testify.

33/ I'll start with the first of those observations. Because pundits don't know who Mueller plans to charge—or for what—and whether Trump will be a witness or defendant by the time Mueller finally wins the right (after, presumably, a court battle) to subpoena him, all is in flux.

34/ Mueller could be prevented from subpoenaing Trump by regs; could—though unlikely—lose in court when he tries to subpoena him; Trump could assert a blanket Fifth Amendment claim as the presumed target of an Obstruction investigation; Mueller could've referred a charge by then.

35/ At the same time, we don't *know* if those things can or will happen, which is why legal pundits aren't going on TV and very clearly saying, "He should just refuse a voluntary interview because there's no way Mueller can ever compel him to testify." They're *not* saying that.

36/ What they *are* saying is that Trump shouldn't agree to a voluntary interview because he's a Perjury machine, refusing such an interview leaves him one less battle to fight, and he might have very good cause to *refuse to testify* by the time Mueller tries a subpoena on him.

37/ That last point explains, in part, the second observation I just made: Trump will never testify in the Mueller investigation, under oath or otherwise. He simply has too many mechanisms to avoid doing so, as long as he's willing to take the political hit of pleading the Fifth.

38/ Ironically, the hit Trump takes in pleading the Fifth really *should* be much, much bigger than I think it *will* be, as if he somehow successfully manages a blanket Fifth invocation when he's still just a witness, he's essentially saying he's guilty of a sh*t-ton of charges.

39/ For Mueller to escape the Fifth Amendment catch-22 he's now in, he'd have to do everything in his power to ensure that Trump appears to be no more than a witness in his probe, and then fight on a question-by-question basis to get Trump to answer any non-Obstruction questions.

40/ The ship has already sailed on Mueller getting Trump to answer questions relating to Obstruction; Trump can and will plead the Fifth in response to any such questions, all the while claiming that he's innocent and the whole Obstruction investigation is a political witch hunt.

41/ His argument *won't* be that he didn't obstruct Mueller's probe—it'll be (and we've already seen Trump preview this argument) that Mueller is only thinking of charging him with Obstruction because he couldn't find anything else, and Trump is therefore *right* to obstruct him.

42/ Hopefully it goes without saying that this argument spits in the face of our rule of law. You can't, in fact, obstruct an investigation just because you think it's bogus. If you could, every defendant in America would be obstructing the *hell* out of every case against them.

43/ But Trump's base—many of whom once claimed to be "law-and-order" voters—will go with his anarchistic argument, anyway. They'll say that Trump was *right* to plead the Fifth Amendment in the face of bogus Obstruction charges. "He damn well *should've* obstructed!" they'll say.

44/ My point is that you're wrong if you think the Fifth is a magic wand that can just get Trump out of answering any questions he doesn't feel like answering. But you're *also* wrong if you think Trump can't use the Fifth to avoid answering questions *under these circumstances*.

45/ And the *very* thing that allows Trump to use the Fifth under these circumstances is the thing that will do him in over the long run: HE IS GUILTY.

Not just of Obstruction, but of Conspiracy relating to computer crimes, election law, money laundering and possibly far worse.

46/ That's why, when Trump pleads the Fifth—even if he's just a witness, and should only have a limited opportunity to invoke it on a question-by-question basis—you will see that his invocation is *very, very broad*. And yes, that *will* indicate that he's guilty of a great deal.

47/ Legally speaking, a *jury* can't presume guilt as a result of a defendant invoking the Fifth Amendment. But understand this—that's merely what attorneys call a "trial presumption." In the court of public opinion, we've *every* right to judge Trump for an over-broad assertion.

48/ My read of things is that Bob Mueller has enough to charge Trump with Obstruction *now* (or, under the circumstances, which per the DOJ regs and holdings he's bound by prevent him from indicting a sitting president, "enough to refer an indictment for Obstruction to the DOJ").

49/ So I think the only reason Mueller is holding back on referring Trump for Obstruction is he still might be able to trick Trump's lawyers into letting him talk to Trump—a slim chance depending almost entirely on Trump being too vain, delusional or political to plead the Fifth.

50/ I said earlier I "can't wait" for Trump to testify under oath. I also know I'll *have* to wait—likely forever—as there's almost *no* chance it will happen.

But if Mueller needs any final confirmation—in his heart—that Trump committed Obstruction, that invocation will do it.

CONCLUSION/ Trump will be referred to DOJ for an impeachable offense, and his refusal to testify on Obstruction will inadvertently reveal—if his recent Manafort comments didn't already—that he committed many crimes beyond Obstruction. Because—guess what—he sure as hell did. {end}