MOBILE, Ala. (WKRG) — Earlier this month, former President Donald Trump was called to give a deposition under oath as the state of New York looks at the Trump Organization’s business practices.

The former president invoked his constitutional right against self-incrimination, pleading the Fifth, and refusing to answer questions.

Mobile attorney Marcus Foxx says it’s not unusual for people to invoke the fifth in both criminal and civil cases.

Bill: Well, earlier this month, former President Donald Trump was called to give a deposition under oath as the state of New York looks at the Trump Organization’s business practices.

Jessica: Well, the former president invoked his constitutional right against self-incrimination, pleading the Fifth, refusing to answer questions. This morning, here to talk about what it means to take the Fifth is Mobile attorney Marcus Foxx . Tell us what that means.

Marcus Foxx/Attorney: Well, the Fifth Amendment or invoking the Fifth Amendment right is a constitutional right that no person who is a party to a criminal prosecution can be compelled to give statements or evidence against themselves in that prosecution. Now, in a normal context, when you have a criminal case there’s an investigation ongoing or prosecution ongoing. It is enough to raise your right to plead the Fifth, if you will, and also your right to counsel. And then that would probably end the investigation and the interrogation. When you raise that Fifth Amendment right in a civil context, is a little different. There are notice requirements and you actually have to race to fit to specific requests. Okay. And so that’s why you might see different uses of the Fifth Amendment.

Bill: So in a civil context, you may every question is asked. You may say same answer, well, as has happened.

Marcus Foxx: Correct. And the reason you would do that is because in the civil context, unlike the criminal context, you’re always presumed to be innocent throughout the course of a trial or an investigation. And that no should be no presumption from you raising a fifth in a criminal case in a civil context. In order for the court to determine whether it’s a good faith invocation of the right.
The raising of that right has to be made directly to the specific request.

Bill: Yeah. We can get down in the weeds on that. But a lot of people look at taking the Fifth as a sign of guilt.

Marcus Foxx: That’s true. And in both purely criminal cases, as well as civil cases, there is an understanding or an inference. And the courts go to great lengths in regular criminal cases to say, hey, you should not raise any particular presumption or inference from that. But in a civil case, there are inferences that can be drawn from raising the fifth to specific question.

Jessica: But not surprising to you that the former president would raise if.

Marcus Foxx: I really don’t have any insight as to his strategy for that. But I can say that any criminal defendant who has been advised by counsel that a particular question or a particular request may have some incriminating evidence or potentially incriminating evidence raising the fifth would be a response to that.

Bill: We bring it down to the local level. You are a criminal defense attorney. You have a lot of folks that you defend in court. You’ve had clients take the fifth.

Marcus Foxx: That is correct. That is correct.

Bill: Best. Best advice. Keep your mouth shut.

Marcus Foxx: In some cases, yes. In some cases, yes. And in others, people may take the opportunity to waive their Fifth Amendment privilege and give a statement. But that is something that is reserved for each specific case and each specific advice.

Bill: There we go. Marcus Fox is our guest attorney at law here in Mobile. We thank you very much for getting up early with us.

Marcus Foxx: Thank you much for having me.