Following the release of dozens of transcripts, the public now knows that several advisers and associates of former President Donald Trump passed the Fifth Amendment when questioned by members of the House committee investigating the January 6 attack on the Capitol. Political commentators have already suggested that pleading the Fifth confirms the guilt of these individuals. After all, as Trump himself once noted, “The mob is taking the Fifth. If you’re innocent, why are you accepting the Fifth Amendment?”
This misguided view of the law against coerced self-incrimination forgets a lot of history.
Too many Americans believe that a person only invokes the Fifth when they are hiding something – usually criminal behavior. This misguided view of the law against coerced self-incrimination forgets much of the history and ignores the true purpose of the amendment. The right not to incriminate oneself, often called “privilege”, has its origins in the 12th century. The law became controversial in 15th and 16th century British proceedings when people were summoned to testify to their religious or political beliefs. Those compelled to testify invoke the Latin maxim nemo tenetur prodere se ipsumwhich means that no one should be required to accuse themselves.
In the 1950s, Sen. Joe McCarthy, R-Wisc., accused many people, without proof, of being members of the Communist Party. At that time, being a communist was a crime. When these people refused to testify before McCarthy’s Senate committee, he called them “Fifth Amendment Communists.” As a result of McCarthy’s actions, many politicians and even much of the public rose up against the Fifth Amendment and wanted it abolished.
More than two decades later, in 1986, Sen. John Glenn, D-Ohio, criticized Lt. Col. Oliver North for invoking the Fifth during congressional hearings investigating the Iran-Contra scandal. “I can’t think of anything that’s going to polarize Capitol Hill any more or make political football out of it any more than people taking Fifth or blocking it from getting to all the information,” he said. he declares. Despite Glenn’s anger, North legitimately invoked his constitutional right not to testify.
Finally, consider Lois Lerner’s 2013 experience before the House Oversight and Government Reform Committee. Lerner was the director of the Tax-Exempt and Governmental Entities Division of the Internal Revenue Service during the Obama administration. Lerner’s office had been accused of delaying the approval of candidacies from some politically conservative groups. The Treasury Department’s inspector general ultimately concluded that, although some employees working under Lerner acted improperly, there was no evidence to support accusations by Republican members of Congress that Lerner’s office was motivated. by political concerns. Nonetheless, Lerner was subpoenaed to testify before Congress.
On May 22, 2013, Lerner appeared before the committee. Lerner made an opening statement claiming his innocence. She then invoked the Fifth Amendment and refused to answer questions from committee members.
The Republican members of the committee were furious. They argued that by making an opening statement in which she professed her innocence, Lerner had waived her Fifth Amendment rights. Ultimately, the committee voted to hold Lerner in contempt of Congress.
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Despite outrage from Republican members of Congress, there was no inconsistency between Lerner declaring she had done nothing wrong and her taking of fifth. Nor had Lerner waived his right to silence. Twelve years earlier, in Ohio v. Reiner, the Supreme Court said:[W]We have never argued… that privilege is not available to those who claim innocence. … [T]the sincere answers of an innocent witness, as well as those of a malefactor, can furnish the government with incriminating evidence from the very mouth of the speaker.
Yes, the January 6 Committee is not a criminal court, and the Supreme Court has ruled that an adverse inference of guilt can be drawn in civil proceedings when a witness invokes the Fifth. But the distinction between criminal and civil proceedings misses the point. The Fifth Amendment applies to all legal proceedings. (Trump claimed privilege nearly 100 times during his 1990 divorce proceedings when asked about “other women.”) And there’s no inconsistency between claiming his innocence while invoking the Fifth, the Supreme Court said in Reiner, when it noted that “the privilege protects the innocent as well as the guilty.
And indeed, there are many perfectly legitimate reasons why people, including those called to testify before the January 6 committee, plead the Fifth. More often than not, it’s because their attorneys have advised them to do so. During testimony before Congress, a person may say something that could harm their legal interests in a criminal case. The newly released transcripts reveal that congressional investigators had extensive information regarding the activities and conversations of the witnesses subpoenaed to testify. No competent attorney would let his client testify about facts that could later be used against the person in a criminal trial or be the basis of a prosecution for perjury.
If Congress wants individuals to testify about what they knew or did before, during, and after January 6, 2021, it has the means to obtain that information. Congress can apply to federal court to request that witnesses be granted immunity. With immunity granted, these witnesses can be compelled to answer congressional questions, knowing that their answers and any evidence derived from their answers cannot later be used against them in a criminal trial. This is the proper and constitutional way to proceed. Doing so protects the Fifth Amendment rights of individuals and gives Congress the information it wants.