Comment: Fifth Amendment isn’t a blanket stay-out-of-jail card

Congress’ Jan. 6 committee is entitled to probe the validity of a Trump lawyer’s latest refusal to testify.

By Norman Eisen, E. Danya Perry and Joshua Perry / Special To The Washington Post

It’s rare when lawyers — as opposed to their clients — take the Fifth Amendment. But Jeffrey Clark, the former Justice Department lawyer who reportedly tried to help Donald Trump overturn the 2020 presidential election, is now claiming the privilege against self-incrimination to avoid testifying before the House committee investigating the Jan. 6 attack on the Capitol. He has just been joined in that posture by one of Trump’s main outside legal advisers, John Eastman.

Their fear of incrimination could well be justified: There can be serious state and federal criminal consequences for trying to fraudulently interfere with an election. But merely invoking the Fifth isn’t a blanket protection against every form of accountability. The committee has options to test manipulative assertions of privilege.

Clark was to appear Saturday for his second round before the committee. In his first appearance, on Nov. 5, he flatly refused to cooperate, invoking what committee Chairman Bernie Thompson, D-Miss., called “vague claims” of executive privilege.

Since then, it’s become increasingly hard for Trump’s associates to credibly hide behind executive privilege. On Nov. 9, U.S. District Court Judge Tanya S. Chutkan handed down a decision eviscerating Trump’s claim that records of the White House’s involvement in the Jan. 6 insurrection are somehow privileged. Just three days later, the Justice Department indicted Stephen Bannon — the right-wing media personality and Trump consigliere — for contempt of Congress, after Bannon cited the privilege in his own refusal to testify. In the face of all that, even former Trump chief of staff Mark Meadows has apparently shelved his erstwhile claims of privilege and is cooperating with the committee.

So Clark has come up with a new privilege to invoke. He now says that he’s protected by the Fifth Amendment, which forbids the government from compelling self-incriminating testimony. In light of that claim, the committee‚ which had unanimously approved a report recommending that the House cite him for contempt after his earlier antics, agreed to give him another chance to answer questions.

Trump has serious federal and state criminal exposure, and we don’t discount the possibility that Clark might also face prosecution for his reported conduct. In Atlanta, Fulton County, Ga., District Attorney Fani Willis is investigating whether Trump and his cronies broke the law by trying to overturn the election. And Clark is reportedly the Justice Department official who proposed sending a deeply dishonest letter to Georgia officials citing utterly unsupported fraud claims and urging the state legislature to consider naming bogus electors in defiance of the popular vote. Don’t just take our word for the criminal risk: Last week, the latest in a series of federal judges implied that Trump and other insurrection ringleaders should be held liable.

But the Fifth Amendment protects against self-incrimination; not against public condemnation. The mere invocation of the amendment by a former high-ranking Justice Department official before a congressional committee investigating an attempt to overturn the election is a scarlet letter. It is one now affixed to Trump, his entire White House and his administration’s Justice Department. If nothing else, Clark’s gambit underscores the critical mission of the committee, and that it is on to something.

Committee members aren’t powerless merely because Clark gestures toward the Fifth Amendment. They must take the Constitution’s protections seriously, and they’ve already signaled that they do, by giving Clark another chance. But they don’t have to throw up their hands and automatically give him a pass.

The committee is entitled to probe the validity of Clark’s latest excuse. He may have waived the Fifth by failing to assert it the first time he refused to testify. Although the committee members seem disinclined to press that point, they shouldn’t be too hasty in giving it up. The committee also should explore whether there’s actually a sufficient basis for Clark to invoke; or whether this is just another manipulation. The timing of this last-minute assertion seems to be evidence of the latter.

Taking the Fifth doesn’t absolve Clark from the requirement to show up and reply to questions. He can invoke his rights against self-incrimination on a carefully considered, question-by-question basis; but it’ll be another sign of bad faith if he simply refuses to talk at all.

The Fifth Amendment also doesn’t protect Clark against the committee’s demand that he produce at least some documents. That’s because the Supreme Court has held that the amendment only protects against disclosing documents if the act of production would somehow be incriminating; for instance, a subpoena to a counterfeiter for counterfeit bills. But the Fifth doesn’t protect Clark from disclosing, for example, previously created memos or emails about the alleged election fraud scheme in his possession.

Finally, even if Clark does have a valid Fifth Amendment privilege, federal law allows the committee to seek a judicial ruling immunizing him for his testimony. That would overcome the Fifth Amendment privilege and force Clark to answer the committee’s questions without fear of self-incrimination.

Immunity would mean that none of his congressional testimony could be used against him in any prosecution, federal or state. It would not technically protect him against prosecution for any underlying criminal conduct. But prosecutors would have to be careful to make sure that the immunized testimony in no way infects their process. The legal procedure of immunizing Clark could take some time, but it could be worth it; especially if the committee believes that he has information about Jan. 6 and its run-up that nobody else can provide, and if it determines that as a practical matter, there is a low likelihood of Clark ever being criminally prosecuted.

The situation with Eastman, who has just announced his determination to “take Five,” is much less developed. But the same analysis applies. He must explain the basis for his assertion. He must appear at his deposition and assert the privilege as to specific questions. If the privilege does not apply, or he has waived it — for example, through prior disclosures on a topic — he must answer. He must produce documents not covered by the privilege. And then the committee should consider next steps – forceful ones, if necessary.

As attorneys, Clark and Eastman reportedly tried to use their law licenses to help Trump’s effort to attack and overturn the 2020 election and deprive voters of a most sacred civil right. Now they seek shelter behind the critically important civil liberty guaranteed by the Fifth Amendment. That may be their prerogative, however ironic. But it does not shield their testimony and their documents from scrutiny. Congress has the tools to drive accountability forward. It should use them.

Norman Eisen, a senior fellow at the Brookings Institution, was President Barack Obama’s ethics czar and ambassador to the Czech Republic, and served as special counsel to the House Judiciary Committee during the first Trump impeachment.

E. Danya Perry, a former deputy attorney general for the State of New York and former assistant U.S. attorney for the Southern District of New York, is a co-founder of Perry Guha LLP.

Joshua Perry is of counsel with Perry Guha, LLP, a litigation boutique focused on complex civil and criminal trial practice and white collar investigations.

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