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What does it mean to plead the Fifth?

By Irene F. Thomas
December 6, 2021
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Such a move by former Justice Department official Jeffrey Clark and Conservative lawyer John Eastman puts them in a long line of officials who “took the fifth” when called to testify before lawmakers.

But what exactly is the Fifth Amendment, and how will it affect the January 6 House select committee investigation? Here’s what you need to know:

Invoking the Fifth Amendment is usually done to avoid answering specific questions. Ratified in 1791, the Fifth Amendment protects a person from being “compelled in any criminal matter to testify against himself”.

The amendment reflected an effort to protect witnesses from a sort of inquisitorial star chamber of 15th-century England.

Here’s exactly what the Fifth Amendment to the U.S. Constitution says: No one shall be held accountable for a capital or otherwise infamous crime, except on presentation or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when he is on duty. effective service in time of war or public emergency; and no one may be subjected for the same offense to twice life or physical integrity in danger; nor be compelled in a criminal case to testify against himself, nor be deprived of his life, liberty or property, without due legal process; private property should not be used for public use without fair compensation.

The “self-incrimination clause” generally means that a witness cannot be compelled to make statements which he considers likely to be negative or used against him. The right must be affirmatively waived.

Does Advocating the Fifth have a negative connotation?

Although taking the fifth may have negative implications depending on the circumstances, the United States Supreme Court has long considered the right against self-incrimination as a venerable part of the Constitution and has tried to ensure that the silence of a witness is not equated with guilt.

What does this mean for the January 6 committee?

Clark and Eastman’s Fifth Amendment invocations could prove to be a significant headache for the House select committee given their importance as witnesses.

Clark helped then-President Donald Trump craft a plan to oust the then Acting Attorney General, rise to the top of the department, and bring in the Georgia Department of Justice to put aside the results of his vote to influence the state towards Trump. Eastman, meanwhile, helped develop a questionable legal theory that then Vice President Mike Pence had constitutional authority to halt the certification of the 2020 presidential election results. .

Since Clark is supposed to invoke these protections against self-incrimination, it’s unclear how much information the committee will receive or whether they will be happy with their level of participation.

Committee chairman Bennie Thompson, a Democrat from Mississippi, previously told CNN the scheduled deposition: “I can’t anticipate what he will say.”

“I just know his lawyer represented the fact that his client is considering making” the Fifth Amendment, Thompson said. “If he’s considering taking it, he’ll have to take it every time we ask him a question.”

If Clark answers the committee’s questions in his testimony arguing the Fifth Amendment, the panel will likely have to stop the process of holding him in criminal contempt. But if Clark continues to block the committee and invoke the Fifth Amendment in a way the committee deems illegitimate, the panel will likely proceed to a floor vote.

When asked if there was still a very good chance they would go into criminal contempt after the postponed deposition, Thompson replied, “Uh, yeah, absolutely.”

While there was no motion for criminal contempt against Eastman, the Special House Committee showed that it was prepared to follow such a route with uncooperative witnesses.

Eastman confirmed on Steve Bannon’s podcast Friday that he had sent the committee a letter advising of his intention not to cooperate with his subpoena, citing a wide range of legal arguments, including his right to invoke the Fifth Amendment .
“My legal team wrote a letter responding to the summons request, explaining all the reasons why I was going to assert my Fifth Amendment privileges, not to come and testify and not produce all of these documents,” Eastman told Bannon, who is also a subpoena target and is being sued for contempt of Congress for his refusal to cooperate with the committee.

Eastman is scheduled to appear before the committee on Wednesday.

What about requests for documents?

The Fifth Amendment will not protect Clark, Eastman or any other witness from the House Select Committee’s request for certain documents.

Why is that? Because the Supreme Court ruled that the Fifth Amendment protects against disclosure of documents only if the disclosure itself is incriminating.

What did Trump say about pleading for the Fifth?

Ironically, the former president has made fun of the Fifth Amendment as a haven for the Mafiosi.

“If you are innocent, why are you taking the Fifth Amendment,” Trump said as a candidate in 2016, complaining about assists from his Democratic opponent, Hillary Clinton, who was asked about using a private messaging when she was secretary. of state.

“The crowd takes the fifth,” Trump said.

CNN’s Joan Biskupic, Katelyn Polantz, Ryan Nobles and Gregory Kreig contributed to this report.


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