The Fifth Amendment in Congressional Investigations (CRS Report for Congress)
| Release Date |
Sept. 11, 2015 |
| Report Number |
LS_2015-09-11_01 |
| Report Type |
Legal Sidebar |
| Authors |
Heitshusen, Valerie;Beth, Richard S. |
| Source Agency |
Congressional Research Service |
Summary:
A witness before the House Select Committee on Benghazi (Committee) recently invoked his Fifth Amendment privilege against self-incrimination in response to a Committee subpoena for testimony and documents. This is neither the first, nor is it likely to be the last time that a congressional committee engaged in an investigation has been faced with a Fifth Amendment claim. In these situations, committees may need to confront several important questions, including: (1) how the scope of the Fifth Amendment's protections differ with respect to oral testimony as opposed to the production of existing documents; and (2) what options are available to respond to a witness's assertion of constitutional privilege? Witnesses may invoke the Fifth Amendment privilege during a congressional investigation with regard to testimony or documents that are: (1) testimonial ('relate[s] a factual assertion'); (2)self-incriminating (any disclosures that tends to show guilt or that furnishes any 'link in the chain of evidence' needed to prosecute); and (3) compelled (not voluntarily given). Oral testimony given pursuant to a subpoena and in response to committee questioning almost always qualifies as testimonial and compelled. Therefore, the remaining inquiry is whether the responsive testimony would be 'incriminating.' The Supreme Court has taken a broad view of what constitutes incriminating testimony, holding that the privilege protects any statement 'that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might so be used.' Even a witness who denies any criminal wrongdoing can refuse to answer questions on the basis that he might be 'ensnared by ambiguous circumstances.'
