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Donald Trump and his two eldest children have been ordered by a New York judge to appear for a deposition within 21 days, as part of an investigation into Trump family finances. The development poses the former president with a dilemma: should he invoke his right to silence by pleading the fifth?

Donald Trump.

Donald Trump. Photograph: Carlos Barría/Reuters

What does ‘pleading the fifth’ mean?

The right of any person to decline to answer questions put to them in criminal proceedings flows from the fifth amendment of the US constitution. The edit, dating to 1791, protects individuals from self-incrimination. “Nor shall any person be compelled in any criminal case to be a witness against himself,” it says.

Technically, the investigation into alleged fraudulent accounting at the Trump Organization is being conducted by Letitia James, the New York state attorney general, as a civil case, and as such is not covered by the right to silence. There is a complication, though: James has made clear she is working in unison with the Manhattan district attorney, Alvin Bragg, who is also looking into Trump finances but as a criminal matter.

On Thursday, hours before Judge Arthur Engoron ruled that Trump and his children Donald Jr and Ivanka had to present themselves for questioning, the former president’s lawyers protested that he was being put in an impossible bind.

Alina Habba The court: “They either disclose evidence in a civil investigation or they have to invoke the constitutional right not to testify, thereby triggering an adverse inference in the civil action. How is that fair, your honor?”

Does pleading the fifth imply the witness is guilty?

US law could not be clearer. Invoking your right not to answer a question in a criminal case says nothing about your guilt, and no inference may be drawn from it. The supreme court has underlined that point several times.

Of course, what the law says is not the end of the calculation. Witnesses have to weigh up how a jury might respond were the case to go to civil trial, as Trump’s might. If you are a politician like Trump, there is also the vexed issue of public opinion.

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