AILSA CHANG, HOST:
President Trump's personal lawyer, Michael Cohen, is asserting his Fifth Amendment rights in a lawsuit brought by the adult film star Stephanie Clifford, who goes by Stormy Daniels. The case is rooted in Daniels' claim that Cohen paid her to keep quiet about an affair she says she had with Trump years ago. Cohen is also being investigated by the FBI. Today President Trump defended Cohen's decision to take the Fifth. But on the campaign trail in 2016, he said this.
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PRESIDENT DONALD TRUMP: You see, the mob takes the Fifth. If you're innocent, why are you taking the Fifth Amendment?
CHANG: I asked former federal prosecutor Ken White for his perspective on that. Why would he advise someone to take the Fifth?
KEN WHITE: Taking the Fifth simply means asserting your Fifth Amendment right not to answer questions that might incriminate you. And with all respect to the president in his prior statement, saying that it shows you're guilty of something is the sort of thing people say until they or someone they love is in legal jeopardy. The reason you would do it is not just if you've done something wrong but to prevent your words from being used against you in ways that you may not even be able to foresee yet.
CHANG: So it's a right that you can assert in either a criminal case or a civil case, right?
WHITE: That's correct. In a civil case, there can be consequences for taking the Fifth. You can in effect wind up losing the case because you're not able to state your side. In a criminal case, it can't be used against you. But in either case, it's often the absolute only thing that a sensible person would do. And some of the reasons are not just because you're going to blurt out a confession to a crime. It's going to be because - the terminology is you might give the prosecution a link in the chain that would eventually lead to your prosecution.
CHANG: OK, so you've just laid out overwhelming reasons for taking the Fifth in criminal cases, but you noted that in civil cases, you could be at a distinct disadvantage if you took the Fifth because then you can't plead your side of the case. And that is what Michael Cohen is essentially doing here, right?
WHITE: Yes. Once he knew that the federal government thinks that there may be a federal crime involved in a deal you've done, you can't go around talking about that deal. The only sensible thing was to take the Fifth.
CHANG: So he's asserting the Fifth in this civil lawsuit brought by Stephanie Clifford, or Stormy Daniels, not so much to adjust his posture in the civil case. He is doing this for how it will impact the criminal investigation against him.
WHITE: Absolutely. He can't afford to have more inconsistent statements about things out there. He can't afford to answer questions when he doesn't know exactly what the FBI is looking at as a potential crime.
CHANG: We've been talking about the Michael Cohen case like it were any other case, but it's not. It touches the president of the United States. So how does that affect the calculation for whether or not to take the Fifth?
WHITE: In all sorts of bizarre ways. I mean, first of all, overall, this looms the possibility that President Trump could pardon Michael Cohen for any federal crimes that he's committed. In addition, the immense media scrutiny makes it very different. There's a great pressure to make statements. And every time they make one, they are further hurting their chances in court.
CHANG: Does President Trump have a vested interest in whether or not Michael Cohen takes the Fifth?
WHITE: He does. I mean, there are political ramifications. But in addition, he is no doubt somewhat concerned about Mr. Cohen becoming a cooperator and telling who-knows-what to the special counsel. So taking the Fifth for now signals that Mr. Cohen is, you know, keeping his options open, looking out for himself, which of course he should do.
CHANG: Ken White is a former federal prosecutor who is now a criminal defense lawyer. Thank you very much for speaking with us.
WHITE: Thank you for the opportunity.
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