Donald Trump has a whole new Hope Hicks problem


Of all the things that are misunderstood about the legal system, one of the most flagrant is the popular belief that people can “choose” whether or not to testify against other people. In reality it just doesn’t work that way.

The Fifth Amendment protects you from having to testify against yourself, which in turn protects you from testifying about crimes that you jointly committed with another person. But if you simply witnessed a crime without participating in it, the Fifth Amendment doesn’t apply, and you have to testify whether you want to or not. Failure to do so would get you locked up for obstruction.

So if you’re Hope Hicks and you’re hoping not to have to testify against your old friend and former boss Donald Trump in his upcoming criminal trial, too bad. Multiple major news outlets reported on Monday that prosecutor Alvin Bragg is expected to call Hicks as a witness for the prosecution during this month’s trial, which means that – unless Bragg changes his mind – Hicks is testifying.

We’re already seeing all the usual confused debate about whether Hicks has “flipped” on Trump or whether she’ll “go through” with it. But this is all gibberish, because it doesn’t work that way. The concept of flipping only applies to when you committed a crime with someone, and are cutting a deal to testify against them in exchange for leniency. Hicks isn’t a co-conspirator. She’s just a witness to a crime. Which means she’s automatically required to testify against Trump, and would go to jail if she didn’t.

A lot of things about the law are complicated, but this is one of the most straightforward. If you witness a crime but you didn’t participate in that crime, you end up being legally required to testify about what you witnessed. If you refuse to testify, or get on the stand and pretend you can’t remember anything, you go down for obstruction. If you lie to try to protect the defendant, you go down for perjury.

So yeah, Hope Hicks will be testifying against Donald Trump during his trial. Not because she wants to, or because she’s choosing to, but because she legally has to and there’s no realistic way out of it. There will be other witnesses who fall into this category as well. Trump doesn’t seem to understand how the law works in this regard, but it’s important that we all do.