--- title: Why Donald Trump Might Plead the Fifth Amendment description: If he pleaded the Fifth Amendment to avoid answering a question from Special Counsel Robert Mueller, Donald Trump would make history. canonical: https://time.com/5269606/donald-trump-plead-fifth-amendment-robert-mueller/ author: Tessa Berenson article:opinion: false article:content_tier: free article:published_time: 2018-05-08T17:32:30.000Z article:modified_time: 2026-10-12T09:09:09.950Z article:section: Politics og:title: How Donald Trump Could Make History by Pleading the Fifth og:description: "I’m going to walk him into a prosecution for perjury like Martha Stewart?” og:url: https://time.com/5269606/donald-trump-plead-fifth-amendment-robert-mueller/ og:site_name: TIME og:image: https://static.time.com/v3/assets/bltea6093859af6183b/blt5c88f2127d2ac07f/69892f87ab6d77a2506b2912/gettyimages-9542540521.jpg?branch=production&width=1200&quality=75&auto=webp&crop=16:9 og:image:width: 3729 og:image:height: 2098 og:image:alt: US-POLITICS-PRAYER BREAKFAST-TRUMP og:type: article twitter:card: summary_large_image twitter:title: How Donald Trump Could Make History by Pleading the Fifth twitter:description: "I’m going to walk him into a prosecution for perjury like Martha Stewart?” twitter:image: https://static.time.com/v3/assets/bltea6093859af6183b/blt5c88f2127d2ac07f/69892f87ab6d77a2506b2912/gettyimages-9542540521.jpg?branch=production&width=1200&quality=75&auto=webp&crop=16:9 ---  # How Donald Trump Could Make History by Pleading the Fifth > Sponsored content. 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It explains the politics, personalities and power dynamics behind the headlines, twice a week. #### Where can I get analysis of Washington politics by email? D.C. Brief is TIME's free Washington politics newsletter, available at time.com/newsletters. It is written by a TIME senior correspondent who covers the capital full time. #### Who writes TIME's D.C. Brief? Philip Elliott, a senior correspondent at TIME, writes D.C. Brief. #### Is D.C. Brief free? Yes. D.C. Brief is free at time.com/newsletters. ### Sources * TIME Newsletters: [time.com/newsletters](/c/time-nl-dcbrief-2026q3/newsletters?i=6759262e-1faf-460b-a0e5-4682a3c6a81f&cr=time-nl-dcbrief-2026q3-v1) ## Video: Legal Answers to Questions About Donald Trump and Robert Mueller [Watch (HLS stream): Legal Answers to Questions About Donald Trump and Robert Mueller](https://cdn.jwplayer.com/manifests/u2St1GOu.m3u8) (1:58)  _Published 2017-06-22. It's a deceptively simple question. Can Donald Trump fire Robert Mueller?_  by [Tessa Berenson](https://time.com/author/tessa-berenson/)  ## Tessa Berenson May 8, 2018 5:32 PM UTC It's a deceptively simple question. Can Donald Trump fire Robert Mueller?  by [Tessa Berenson](https://time.com/author/tessa-berenson/)  ## Tessa Berenson May 8, 2018 5:32 PM UTC If he pleads the Fifth Amendment to avoid answering a question from Special Counsel Robert Mueller, Donald Trump would make history. Experts say that no previous president has ever used the constitutional right to avoid self-incrimination while in office, a [possibility raised by Trump lawyer Rudy Giuliani](http://time.com/5267174/giuliani-trump-fifth-amendment/) in TV interviews this week. While Trump has the same rights as any other citizen to avoid incriminating himself in a legal probe, the move could still hurt him. “The benefits are all legal, but I think the detriments are political,” says Saikrishna Prakash, professor at University of Virginia Law School and Senior Fellow at UVA’s Miller Center, which has a partnership with TIME. “If he pleads it, there will be many people who say that he’s hiding some kind of crime. Of course, the court can’t infer guilt from this, but we’re free to draw whatever inferences we want as members of the public.” Trump attorneys have said they fear Mueller’s investigation into Russian meddling in the 2016 election could amount to a “perjury trap” in which the president might make an untruthful statement. That pitfall has already claimed two former Trump aides — former National Security Advisor [Michael Flynn](http://time.com/5045202/michael-flynn-statement-guilty-plea-donald-trump/) and former campaign advisor [George Papadopoulos](http://time.com/5006957/george-papadapolous-guilty-plea/) — who pleaded guilty to making false statements to federal agents. Giuliani even likened it to lifestyle guru Martha Stewart, who got in trouble during an investigation into suspicious stock trades. “I’m going to walk him into a prosecution for perjury like Martha Stewart?” he said. **Read More:**[_Robert Mueller Might Question Donald Trump. Here’s What Could Go Wrong_](http://time.com/5119027/robert-mueller-trump-investigation/) Former President Bill Clinton might have been served better by taking the Fifth too, since his [inaccurate answers to a grand jury](http://time.com/5120561/bill-clinton-monica-lewinsky-timeline/) about a relationship with White House intern Monica Lewinsky led to impeachment charges in the House. But to many Americans, taking the Fifth is tantamount to confessing, even though legal experts caution against this interpretation. Trump himself even pushed this view when he was running for president in 2016, referring to Hillary Clinton aides who refused to answer questions about a private email server. “The mob takes the Fifth,” he said at an Iowa rally. “If you’re innocent, why are you taking the Fifth Amendment?” Still, over the past three years, Trump has largely proven himself immune from conventional laws of politics. Incidents that likely would have sunk other politicians, such as the release not long before the 2016 presidential election of the “Access Hollywood” tape in which Trump brags about grabbing women’s genitals, didn’t bring him down. So it’s hard to predict how invoking the Fifth Amendment would affect Trump. “The political fallout might be considerable or it might not, given that pretty much everyone in the country seems to have made up his or her mind one way or the other,” says Jon Michaels, professor at UCLA School of Law. The unusual politics of the Trump-era, coupled with the President’s reported resistance to legal coaching, mean that pleading the Fifth might not be a bad move for Trump. “Is the political fallout from invoking the Fifth higher than the risk of him perjuring himself, divulging stuff \[or\] losing his cool, all these things that any seasoned prosecutor would seize upon?” asks Michaels. “This might be the best instance in our political history where the President should invoke the Fifth.” It’s not yet certain that Trump and his legal team will do this. In the past, Trump has said he would “love” to talk to Mueller and is “looking forward” to an interview. And for now, there’s reason to believe both sides might simply be taking pages out of Trump’s negotiating playbook. “The Administration’s lawyers want to make it seem like they’re not going to cooperate with Mueller, and Mueller wants to make it seem like he’s going to ask a bunch of questions,” says Prakash. “They both want to stake out extreme positions … I think the idea is they perhaps will meet in the middle somewhere.” ## Transcript It's a deceptively simple question. Can Donald Trump fire Robert Mueller? I think he's considering perhaps terminating the special counsel. The president is clearly unhappy that the former head of the FBI was appointed as a special counsel, but some major legal questions surround what might happen next. [ MUSIC ] Trump can't fire Mueller directly but he could order the deputy attorney general who oversees the investigation to do it and if Rod Rosenstein said no Trump could fire him and pressure the next person in line. This is what Richard Nixon did during Watergate in the infamous Saturday Night Massacre. Alternately Trump could repeal the regulations around special counsels then fire Mueller himself. Though that would likely draw even more criticism. [ MUSIC ] Trump may not have to fire Rosenstein though. He might step down on his own accord. The deputy attorney general could decide he was too involved in things Mueller is investigating and recuse himself. In that case, the decisions on how to handle the special counsel's investigation Would fall to Associate Attorney General Rachel Brand, who worked in the Justice Department under George W. Bush. [ MUSIC ] It's not clear if the president can be indicted while in office. The general argument is that any suspected crimes are a political question that should be resolved by the impeachment process. White House lawyers have typically argued that the president can't be indicted, but admit the text of the Constitution doesn't answer the question. The Justice Department has argued both sides in legal briefs over the years, and the Supreme Court has never ruled definitively on the subject. Either way, the question of Trump's future as president would still rest with Congress, which alone has the power to remove him from office [ MUSIC ] ```json [{"@context":"https://schema.org","@type":"NewsArticle","@id":"https://time.com/5269606/donald-trump-plead-fifth-amendment-robert-mueller/","mainEntityOfPage":{"@type":"WebPage","@id":"https://time.com/5269606/donald-trump-plead-fifth-amendment-robert-mueller/"},"headline":"How Donald Trump Could Make History by Pleading the Fifth","datePublished":"2018-05-08T17:32:30.000Z","dateModified":"2026-10-12T09:09:09.950Z","description":"\"I’m going to walk him into a prosecution for perjury like Martha Stewart?”","url":"https://time.com/5269606/donald-trump-plead-fifth-amendment-robert-mueller/","keywords":["White House","russia","Donald Trump","Constitution","onetime","Robert Mueller"],"thumbnailUrl":"https://static.time.com/v3/assets/bltea6093859af6183b/blt5c88f2127d2ac07f/69892f87ab6d77a2506b2912/gettyimages-9542540521.jpg?branch=production&width=1200&quality=75&auto=webp&crop=1200:675&height=675","author":[{"@type":"Person","name":"Tessa Berenson","jobTitle":null,"url":"https://time.com/author/tessa-berenson/"}],"articleSection":"Politics","image":[{"@type":"ImageObject","url":"https://static.time.com/v3/assets/bltea6093859af6183b/blt5c88f2127d2ac07f/69892f87ab6d77a2506b2912/gettyimages-9542540521.jpg?branch=production&width=1200&quality=75&auto=webp&crop=1200:675&height=675","width":1200,"height":675,"headline":"US-POLITICS-PRAYER BREAKFAST-TRUMP","caption":"US-POLITICS-PRAYER BREAKFAST-TRUMP","creditText":"SAUL LOEB—AFP/Getty Images","representativeOfPage":true}],"publisher":{"@type":"Organization","name":"Time","url":"https://time.com/","logo":{"@type":"ImageObject","url":"https://time.com/images/logo.png","width":528,"height":156},"foundingDate":"March 3, 1923","sameAs":["https://www.facebook.com/time","https://www.instagram.com/time/?hl=en","https://twitter.com/time","https://www.pinterest.com/timemagazine"]}},{"@context":"https://schema.org","@type":"BreadcrumbList","itemListElement":[{"@type":"ListItem","position":1,"item":{"@id":"/section/politics/","name":"Politics"}},{"@type":"ListItem","position":2,"item":{"@id":"/tag/white-house/","name":"White House"}},{"@type":"ListItem","position":3,"item":{"@id":"https://time.com/5269606/donald-trump-plead-fifth-amendment-robert-mueller/","name":"How Donald Trump Could Make History by Pleading the Fifth"}}]},{"@context":"https://schema.org","@type":"VideoObject","name":"Legal Answers to Questions About Donald Trump and Robert Mueller","description":"It's a deceptively simple question. 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