Trump’s kids won’t lose their 5th Amendment rights and be forced to testify against him if they’re pardoned, experts say
A presidential pardon isn’t enough to mean that someone can’t plead the Fifth Amendment and refuse to testify, according to criminal law experts.
By Jacob Shamsian
President Donald Trump’s pardons probably won’t come back to bite him.
Some legal observers — including Trump’s former personal attorney and fixer Michael Cohen — have suggested that Trump’s pardons may backfire.
As the theory goes: If Trump pardons people, they’ll no longer have the Fifth Amendment right against self-incrimination, and will be forced to testify in cases that could implicate Trump.
This could be particularly dangerous for cases close to Trump himself, whether it’s Donald Trump Jr. and Jared Kushner meeting with a Russian lawyer to seek dirt on Hillary Clinton ahead of the 2016 election, or accusations that Ivanka Trump misused inauguration funds or helped her father with fake consulting fee tax write-offs.
But criminal law experts say Trump probably doesn’t have much to worry about.
“Anyone who says that, as a blanket proposition, anyone pardoned by Trump cannot invoke the Fifth Amendment privilege — that is just misguided, misplaced,” Randy Zelin, a criminal defense lawyer at Wilk Auslander LLP and adjunct professor at Cornell Law School, told Insider. “It is completely over-simplifying and missing the issue.”
Pardons might help prosecutors — but not by much
According to Cohen, who was disbarred in New York after pleading guilty to tax evasion and breaking campaign finance laws, Trump’s pardons for Michael Flynn and Roger Stone meant that prosecutors could force their testimony in cases against him.
“This produces a very significant problem for Donald Trump in the fact that once you receive that pardon power, once you get that pardon, you’re no longer able to invoke the Fifth Amendment — the right against self-incrimination — because you cannot be charged,” Cohen told MSNBC.
“So all of these people may ultimately be his downfall because they’ll be testifying against him, either before a court or before a tribunal,” Cohen added.
Both cases stemmed from the Mueller investigation, which Trump has decried as a “witch hunt.” Flynn pleaded guilty to lying to the FBI, and Stone was convicted on multiple charges that involved obstructing the investigation.
In an interview with Insider, Cohen’s attorney Barry Spevack agreed with Cohen’s interpretation of the law — to a point.
He said a pardon could make it easier for a prosecutor to compel testimony, but they would still have to clear other significant hurdles.
Since a pardon from the president doesn’t cover state crimes, anyone pardoned by Trump — whether Flynn, Stone, or potentially Trump’s children — could invoke the Fifth Amendment and say they want to avoid state-level prosecution.
“If I were defending one of these people, I would say, ‘Well, the pardon doesn’t protect me from state prosecution, so I’m going to assert my Fifth Amendment for that reason,’” Spevack said.
Trump’s family members, for example, could be bedeviled by ongoing investigations from the New York Attorney General’s office and the Manhattan District Attorney’s office into Trump’s personal and company finances. Paul Manafort, Trump’s former campaign manager, was pardoned by him for federal crimes, but still faces charges in New York State.
The lingering potential for state-level charges may be the biggest obstacle for compelling testimony. It’s difficult to envision a scenario that “would be wholly federal and in no way, shape, or form could be state,” according to Zelin.
“Even if we talk about the possibility of President Trump pardoning himself — or invoking the 25th Amendment and having Vice President Pence become president on the morning of January 20 and pardon President Trump — that part does not extend to the New York state criminal investigations right now that are underway,” Zelin said.
The Fifth Amendment offers wide protections
Prosecutors can still try other ways to force testimony. They can strike a deal that gets the witness immunity for their testimony or convince a judge that the witness isn’t at any real risk of prosecution for what they say, so they should be compelled to testify anyway.
But legal observers say it takes extremely narrow conditions to sidestep the Fifth Amendment’s protections, and it’s unlikely to happen in the cases connected to Trump.
All anyone needs to take the Fifth Amendment, according to Zelin, is “a reasonable apprehension of criminal prosecution.”
The Fifth Amendment is simply too important to a democratic way of life to be waved away so easily, Levin said. It historically exists, he said, to protect people from the government forcing testimony, whether those people are guilty or innocent. To invoke it, you don’t even need to point to an existing case or investigation.
“The Fifth Amendment privilege and the ability of someone to invoke it is so broad, you don’t have to be able to allege that if you say something you could be convicted on your words,” Levin said. “It is simply enough if your words could help the government uncover evidence that could be used against you.”
Pardons are also limited in scope. They only extend to the specific federal crimes specified in a pardon. But state crimes, or linked federal crimes, are still fair game.
Alan Dershowitz, the famed Harvard law professor, criminal defense lawyer, and constitutional scholar, told Insider that the Fifth Amendment can be invoked to protect against prosecution in those cases, as well.
“A creative lawyer can find bases for invoking the Fifth Amendment even in the face of a pardon,” Dershowitz, who was on Trump’s impeachment defense team, told Insider.
If Trump, for example, pardoned someone for perjury, they could still potentially invoke the Fifth Amendment and refuse to testify on the grounds that they may incriminate themselves against laws for lying to a federal official. Many federal crimes also have matching statues on a state level, Dershowitz pointed out, which may give prosecutors more options but also effectively makes sure the Fifth Amendment can still apply even after a pardon.
“If there’s anything else that could be prosecuted for, other than what he was pardoned for, he still has the Fifth Amendment,” Dershowitz said.
Even a wide-ranging blanket pardon only applies to past actions. For crimes that are ongoing — such as, theoretically, if Trump falsified his financial holdings so that he could pay almost nothing in taxes each year — there’s no pardoning for the future.
“With taxes or any kind of bank stuff, these are continuing crimes,” Dershowitz said. “If you did it one year, unless you change your tax returns for future years, you could be liable.”
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