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Jan. 6 panel faces new test as first witness pleads the Fifth

The Hill
The Hill
 2021-12-03
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Former Trump Department of Justice (DOJ) official Jeffrey Clark’s plans to plead the Fifth to the House’s Jan. 6 committee could complicate the department's willingness to prosecute him for contempt of Congress even as it further hints at potential criminal activity by President Trump and others in his orbit.

On the eve of the committee’s vote to censure Clark for failing to comply with their subpoena after largely refusing to answer their questions, a lawyer for Clark indicated he would like to exercise his Fifth Amendment right against self-incrimination.

It’s a remarkable development from a man who became a central player in Trump’s efforts to get DOJ to investigate his baseless claims of 2020 election fraud, including suggesting the department send a letter to Georgia and other states urging them to delay certification of the results.

"People sort of talk about the Fifth Amendment without stopping to think about what he is saying if he invokes the Fifth — that he won't answer a question because he's worried about criminal prosecution," Rep. Liz Cheney (R-Wyo.) vice chair of the Jan. 6 committee, said Thursday.

"And if you think about that in the context of questions we're asking — which have to do with his discussions with President Trump about the election — and if he feels that he can't answer those questions about discussions with Donald Trump because he's worried that he could be facing criminal prosecution, the American people deserve to know that,” Cheney added.

The House Jan. 6 panel had planned to convene a special Saturday deposition for Clark, where they stressed he must assert the right on a question-by-question basis or risk a full House vote to censure him and refer him for prosecution by the very agency where he spent a large part of his career.

Clark, however, rescheduled on Friday, moving the hearing back to Dec. 16 over a medical issue.

The DOJ has already pursued a criminal contempt of Congress referral against Steve Bannon , who briefly worked as a White House strategist and failed to meet with Jan. 6 investigators.

Bannon now faces up to two years in jail and a $200,000 fine.

But the DOJ’s willingness to prosecute Clark could be complicated by his latest legal maneuver.

The committee’s case was more straightforward against Clark when he showed up for his Nov. 5 deposition alongside his attorney and presented a 12-page letter saying he could not answer questions due to executive privilege concerns from Trump.

The panel has rejected the idea that a former president can direct the withholding of documents or testimony to Congress — a power they say only rests with the current executive.

But the concept is even more convoluted for Clark, who received an August letter from Trump’s team saying he is free to cooperate with the committee. He received similar direction from the DOJ in July via a letter highlighting the “exceptional circumstances warranting an accommodation to Congress in this case.”

Chair Bennie Thompson (D-Miss.) acknowledged the gravity of a Fifth Amendment plea at a Wednesday night meeting to censure Clark, describing the assertion as “a weighty one” even as he called it “a last-ditch attempt to delay the Select Committee’s proceedings.”

“This does complicate things,” said Rizwan Qureshi, a white-collar and government investigations partner at Reed Smith and a former assistant U.S. Attorney in D.C. “And it was already complicated by the fact that he’s a lawyer and was a member of the executive branch.”

Whether the House decides to proceed with its plans to censure Clark and whether the DOJ then decides to act on the case likely hinge on the same thing: how Clark wields his Fifth Amendment rights.

“The Fifth Amendment is not a magic wand that makes his duty to comply with our subpoena go away. It must be used in a very closely tailored way, only to refuse to answer questions that might elicit information that would put him in danger of criminal prosecution,” Rep. Jamie Raskin (D-Md.), a member of the committee, said Thursday.

Committee members have stressed that Clark can only assert the Fifth on a question-by-question basis.

“I think that will be the crucial difference honestly, and it is difficult to tease out, but he whether faces prosecution from DOJ will depend quite a bit on what happens exactly when he comes in and claims the Fifth. And I think if he does it sincerely and question-by-question and answers other questions, it will be very hard to prosecute him for contempt,” said Jonathan Shaub, a law professor at the University of Kentucky who previously worked in the Office of Legal Counsel at the DOJ.

“If he comes in and blows the whole thing off and says I'm pleading the Fifth and walks out again, I think he'd be much more likely to face prosecution.”

Clark’s last deposition fell apart after the committee said he was trying to use a “blanket” claim of privilege to avoid answering even some basic questions.

“Where you are on a certain day and who you’re talking to is likely not privileged,” Qureshi said. “What you’re talking about may be.”

“If he shows up — and it seems like he's showing up — and he provides limited information within the confines of his Fifth Amendment privilege right, then DOJ likely does not have a basis to indict him,” he said, adding that sorting out that and whether any executive privilege applies “is going to be a tough row to hoe from DOJ’s perspective. I’m sure DOJ might be hoping this guy shows up and does the minimal thing so they do not have to make a charging decision as it relates to him,” he said.

The DOJ has punted on similar prosecutions in the past, ultimately declining to file charges against Lois Lerner, who asserted the Fifth Amendment during a Republican-led House inquiry into IRS review of various political groups’ tax-exempt status.

“It’s recognized that the Fifth Amendment protects people that are testifying before Congress, so if he does invoke the privilege and does it properly in response to individual questions, I don't think DOJ would prosecute for contempt for invoking the Fifth Amendment,” Shaub said.

If the DOJ does decline to prosecute, the Fifth Amendment plea could become a more appealing pathway for other witnesses who have been sought by the committee but not yet sat for a deposition. That could include former Trump chief of staff Mark Meadows , who is otherwise set to appear before investigators next week.

Lawmakers largely demurred on whether the plea might diminish DOJ interest in prosecution.

"I'll reserve judgment on that until we see what he does,” Rep. Adam Schiff (D-Calif.) said.

Either way, there will likely be ramifications for Clark.

"Asserting his Fifth Amendment privilege is only going to further complicate his legal career, with the bar, and his prospects for employment. If he’s in public and asserting the Fifth as a lawyer, whatever bar he’s a member of may very well decide to investigate him,” Qureshi said.

“In many ways it’s professional suicide.”

Shaub said that could be a factor in why Clark initially sought to rebuff the committee with other privilege claims.

“There's every reason that people are hesitant to invoke the Fifth because they’re acknowledging they were potentially engaged in criminal activity which is why he probably did not use it initially and is using it now as a last resort,” he said.

But Shaub also sees upsides for the committee even if they don’t get much response from Clark.

“I imagine that they sort of welcome a witness coming in and pleading the Fifth Amendment like Clark who they want to ask about conversations with Trump because it adds legitimacy and gravitas to the work of the committee and the investigation,” he said.

“Trump is claiming it’s all a political witch hunt and there’s nothing there, so for someone involved with Trump to say, ‘Your questions about my conversations with the president could potentially incriminate me criminally,’ gives the committee something to hold up the the pubic about the importance of the work they're doing even if they don't get answer to those questions.”

—Updated at 7:16 p.m.

Comments / 220

Claude Foster
12-06

Hold it just a minute! Didn't Lois Lerner invoke the 5th many many times during her hearing? Trying to remember what was being investigated but it made me committee furious!

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Robert Kaptena
12-06

So how come they haven’t released the 40 thousand hours of video surveillance ? Bet there’s a lot of answers there.

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John Landa
12-04

This is a bi partisan panel attempting to assure this insurrection never happens again. If they are innocent they should speak the truth. They appear guilty if they don't talk.

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