Toobin is a clown, but there is an abundance of case law on permissible adverse inferences in a civil case when someone invokes the 5th.
“It is well-established that when a witness invokes the Fifth Amendment in a civil action the Court may draw an adverse inference against that party.” See El-Dehdan v El-Dehdan, 114 AD3d 4, 978 N.Y.S.2d 239 [2d Dept., 2013].
The New York Court of Appeals has held that drawing the adverse inference against a party based on invocation of the Fifth Amendment privilege is “...akin to that arising when a party fails or refuses to produce a material witness who is within his control...” Marine Midland Bank v John E. Russo Produce Co., Inc., 50 NY2d 31, 42, 405 N.E.2d 205, 427 NYS2d 961 (1980).
Also look at SEC v. Susman, 2010 WL 532060, at *5 (S.D.N.Y. Feb. 11, 2010).
See also, NY Pattern Jury Instruction 1:76 “From the assertion of the privilege you may infer, if you deem it proper to do so, that had the answers been given they would not have contradicted the opposing evidence on the issue of [identify issue] or would not have supported (the defendant’s, plaintiff’s) position on that issue and you may, although you are not required to, draw the strongest inference against the (plaintiff, defendant) on that question that the opposing evidence permits [emphasis added].”
I meant I don’t believe this guy is showing his face, and that CNN is putting him in front of a camera.
How about, “I don’t recall”.
Good summary; I think this basically is the law everywhere in the US in both civil and administrative proceedings.
Toobin, by the way, is a victim of self-abuse. If he agreed with your analysis, it would be one of two times in a day when he was correct (like a stopped clock).