Daniels brought her suit against Cohen in March; she alleges that he paid her hush money in the closing days of the 2016 campaign to keep her alleged affair with Trump secret. But Cohen had been on law enforcement’s radar long before then. His work for Trump has been a focus of Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 election and potential obstruction of justice by the president. In early April, his home, office, and hotel room were raided by the FBI.
By pleading the Fifth, Cohen could be trying to shield himself from revealing information in the civil case that could be potentially helpful to federal prosecutors should he be indicted. While there are no Fifth Amendment rights in civil cases, Cohen is able to invoke them because of the possibility that he could be indicted in criminal court on matters related to the civil trial.
“Most people in most situations don’t have to take the Fifth. But given that there’s a criminal investigation of him pending, it’s not that unusual, because he could end up saying things in the deposition that could end up harming him in the criminal matter,” said Randall Eliason, a law professor at George Washington University and a former federal prosecutor focusing on white-collar crime. While Eliason was careful to say it doesn’t amount to an admission of guilt, “it’s not nothing either,” he added. “It indicates that you have reason to be concerned that something you might say might incriminate you.”
Cohen’s invocation could affect the civil case’s proceedings. Daniels’s attorneys could argue that it shows her claims about his culpability are correct: that Cohen was representing Trump when he paid Daniels the hush money, and that Trump’s failure to sign the nondisclosure agreement Cohen wrote makes it invalid. Her lawyers would be legally allowed to do so: Unlike in criminal cases, there’s no prohibition in civil cases against using someone’s Fifth Amendment plea against them. If Cohen is indicted in federal court, the Daniels case could be stayed pending a potential criminal trial.
“Taking the Fifth can be a precautionary measure because talking to the government rarely helps, and often hurts, the person under investigation. And because the burden of proof is on the government, defense counsel will want to see what the government is able to prove before showing their hand,” Whiting said. “So for these reasons, one should never infer guilt from an assertion of the Fifth Amendment, even though, of course, President Trump has famously said otherwise.”
It’s one thing for people to conclude, on the basis of what is reported and publicly known—Cohen’s own public statements and admissions, his associations, the unusual nature of the search warrant executed against him, as well as the president’s statements—that he might be guilty of something. But taking the Fifth shouldn’t be grouped with those factors, because it’s what just about any lawyer would tell a client facing a federal investigation to do, and because it wrongly assumes that the protection against self-incrimination is only for those who are guilty.