The New York state civil matter is an investigation of the Trump organization’s business practices. So, contrary to the implications in a criminal case, taking the Fifth is not cost-free. With respect to any question Trump refuses to answer — and he is apparently declining to answer all questions — the fact finder may infer that if he testified truthfully, his answers would have helped the state’s case.

When something is not cost-free, then our analysis has to be about costs and benefits — or, more accurately here, costs and worse costs. After consulting with his lawyers, former president Trump has decided that the damage he will sustain in the civil litigation by refusing to answer questions is not as bad as the damage he could sustain — not just in the civil litigation but in general — if he were to provide truthful testimony. That does not necessarily mean his truthful testimony would be incriminating, but it could very well mean that. And at a minimum, we can deduce that his testimony would not be helpful to his position.

There is no doubt that Trump is in a tough spot. When you are implicated in criminal investigation (and the search conducted at Mar-a-Lago Monday is clearly indicative of a criminal investigation, and may be relevant to multiple criminal probes), it becomes very risky to testify in a civil deposition because the statements made can be used against you in the criminal probes. This, naturally, gives the adverse lawyers in the civil case the incentive to ask questions they know may bear on the criminal case. But that’s the way it goes. You have to decide whether you’ll get hurt worse by answering or not answering.