Trump insiders believe Fifth Amendment is the ultimate roadblock. It may just be a speed bump

Trump insiders believe Fifth Amendment is the ultimate roadblock. It may just be a speed bump
Roger Stone/Shutterstock

Hundreds of people may have already spoken to the House Select Committee on Jan. 6, but when it comes to the most memorable names from the Trump White House, what they all have in common is subpoenas and a commitment not to honor them. With Steve Bannon already in court following an indictment for criminal contempt, others seem to be following the same path toward months, or years, of federal court hearings. Only, post-Bannon, the remainder of Trump’s crew of in-house insurgents seem to have landed on a new step designed to make an already syrup-in-January process move even slower: They’re taking the fifth.

First, it was would-be attorney general Jeffrey Clark. Clark informed the committee that he would appear at a deposition but intended to invoke his rights against self-incrimination under the Fifth Amendment in response to any questions. That announcement put Clark in the rather unique position of declaring that he could not describe actions he took as a senior member of the Department of Justice without putting himself in peril of criminal charges. Which is … special.

Clark isn’t the only former Trump insider who is latching onto the idea of barricading behind the Fifth Amendment. Politico seems to believe this is a clever move, indicating that this the “most potent strategy” for Trump’s team, arguing that indicting members of the Trump White House after they’ve made a Fifth Amendment plea would be “frivolous.”

But that’s not the way any of this works.

On Clarks’ Gucci-wearing heels came coup-plotting attorney John Eastman. Eastman informed the committee last week that he was refusing to testify or produce documents as requested, again, because doing so would conflict with his Fifth Amendment right against self-incrimination. Eastman, who wrote the plan by which Pence could supposedly declare Trump the winner by refusing to count votes for Joe Biden, refused to even appear, and followed this with a 10-page argument that the whole Select Committee is illegitimate.

And once that path was well defined, Roger Stone joined in. Stone’s attorney even went to a higher plane of obfuscation by saying that they were refusing to turn over documents requested, but that their Fifth Amendment claim couldn’t be interpreted as confirmation that these records actually exist. In other words, we’re refusing to give them to you because they would risk criminal indictment … if they existed.

On Thursday, as The New York Times reports, Mark Meadows took some of the same arguments as Eastman and went a step further, suing Nancy Pelosi and the House Select Committee in federal court with claims that the subpoenas issued to Meadows are “overly broad” and that the committee itself doesn’t have legal authority.

The odds that Meadow’s suit will survive even the first preliminary hearing can be described as long. That won’t stop the appeals for dragging on for months. It also won’t stop the Select Committee from moving ahead with a finding of contempt against Meadows that is a shoo-in to pass the full House and head over to the DOJ, where Meadows suit is likely to be viewed for what it is—an attempt to stall the system.

When it comes to Clark, Eastman, and Stone, the folks at Politico feel that the Fifth is their ticket to a perpetual stall. As legal experts make clear, the Fifth Amendment is an “unqualified privilege.” While claims such as executive privilege, or even attorney-client privilege, have limitations and exceptions, the Fifth Amendment has no such boundaries. What it says, in part, is very simple:

No person … shall be compelled in any criminal case to be a witness against himself

And the experts cited by Politico apparently feel that, as long as Clark, Eastman, and Stone hold to this claim—either putting them in the chair or getting an indictment on charges of contempt—is all but impossible.

Except, while the Fifth Amendment may be unqualified, it’s also very specific. On television, “I plead the Fifth” is slung around with regularity. In the real world, its use is much more limited.

For one thing, it only allows an individual to refuse to witness against themselves “in any criminal case,” which has widely been held to mean in a courtroom trial. A Fifth Amendment plea also doesn’t provide a witness with the right to avoid appearing before a court or from facing specific questions. The Fifth Amendment isn’t an automatic right, and it’s not all-encompassing. It must be explicitly stated, and it’s up to the witness to tell the court what questions are covered by the claim.

In general, the Fifth Amendment applies to two groups:

  • A defendant charged with a crime who refuses to testify in their own trial
  • A witness subpoenaed to testify in a criminal trial who refuses to answer specific questions

There is no option here for “witness who refuses to appear” or “witness who issues a blanket refusal to testify.” That’s called contempt.

Even when witnesses are in a position where the Fifth Amendment may apply, attorneys are extremely reluctant to use it. That’s because attorneys are well aware that judges and juries can’t help but read this as a big “I did something wrong” flag, even if they are legally required to give the claim no weight. Supreme Court has made it clear that juries can’t infer guilt solely because a defendant refuses to answer a question … but it never looks good.

Clark, Eastman, and Stone are, of course, unconcerned about how things look. They’re well aware that their supporters don’t really care if they’re lying, and will reward them for refusing to cooperate, even if that refusal is illegal.

However, the idea that Clark, Eastman, and Stone are welcome to some blanket protection is laughable. For one thing, the House Select Committee hearings are not a criminal trial. For another, none of these men is in any sense the defendant of these hearings. In Clark’s paperwork, his attorney argues that he’s eligible to plead the Fifth because members of Congress have accused him of a crime. Again, that’s not what the Amendment, or any related case, says about how this works.

If the evidence before the Select Committee generates a recommendation for an indictment by the Justice Department, and that translates into an actual trial on charges, any of these three will have ample opportunity to refuse to testify in that trial. It’s also possible that any testimony they provided to the committee might be inadmissible in such a trial. In the meantime, it’s entirely unclear that there’s any basis for upholding a Fifth Amendment plea at this point, and certainly not one that excuses a witness from appearing.

But, as with all the other delaying efforts from the insurgents behind Jan. 6, that’s going to play out in court. Slowly.

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