Fifth Amendment Right Against Self-Incrimination
A “predicate to liberal constitutional government is the freedom of a citizen from government compulsion to testify against himself. . . . It may suit the purposes of despotic power; but it cannot abide the pure atmosphere of political liberty and personal freedom.”
A criminal defendant has no duty to assist in his own prosecution. Prosecutors are barred from arguing or intimating that a defendant who remained silent during a criminal investigation must be guilty because he would have spoken if he’d had nothing to hide. The judge will instruct the jury that the burden of proof beyond a reasonable doubt is on the government alone, the defendant has no duty to prove anything – including his innocence, and the Fifth Amendment prohibits the jurors from drawing an adverse inference from a defendant’s decision not to testify in his own defense.
The right against self-incrimination applies only in the criminal context. In a civil or administrative action, a judge or jury is permitted to draw a negative inference from a defendant’s decision to invoke his rights under the Fifth Amendment to remain silent because of potential criminal consequences. The opponent’s attorney is permitted to argue, and the judge or jury is allowed to conclude, that had he answered the questions his responses would have been harmful to his position and his silence is evidence that he had something to hide. Invoking the Fifth Amending right against self-incrimination can be the death knell for a defendant in a civil or administrative case but it preserves his silence in the event of criminal charges for the same or overlapping conduct.
Untitled, Oil on Panel, 36" x 45", Richard J Van Wagoner, Courtesy of Robert and Cheri Van Wagoner**
Parallel Civil and Criminal Investigations
What happens when someone is presented with the dilemma of being simultaneously under both civil and criminal investigation for the same or overlapping conduct?
Mediating the competing applications of civil law and criminal law to the same sets of facts is a sometimes-complicated analysis and process. Protecting a client’s interests in one context may require the client to compromise his interests in the other. Exercising specific constitutional rights in one circumstance may result in waiving certain such rights in another.
The following are examples of simultaneous or parallel civil and criminal investigations for the same or overlapping conduct.
It is not uncommon that subjects of administrative investigations become targets of criminal investigations for overlapping conduct. As an example, the Securities and Exchange Commission does not prosecute crimes but investigates potential violations of the securities laws, such as insider trading, and files civil actions in federal court to enforce those laws.
The SEC also shares the results of those investigations with the Department of Justice, an agency that prosecutes federal crimes including securities fraud.
Meanwhile, the DOJ often uses the results of the SEC investigation or evidence from the civil enforcement action to conduct its own inquiry and convenes grand juries to bring criminal charges for the same or overlapping conduct.
Hence, any subject of an SEC inquiry who gives testimony to the federal agency or testifies at a civil enforcement action is at risk of self-incrimination in a parallel criminal investigation and prosecution. If he remains silent, the judge in the civil enforcement action may draw an adverse inference from his silence, but he has preserved his silence in case of criminal charges.
The inquiries into Trump and his organization by the New York Attorney General and the New York City District Attorney, discussed below, present a textbook example of such parallel investigations.
Likewise, the United States Congress does not prosecute crimes. It conducts investigations for legislative purposes pursuant to its constitutional mandate and prerogative. The breadth of Congress’s investigative authority, while not unlimited, is far reaching. The recent decision by the U.S. Court of Appeals, D.C. Circuit in Trump v. Thompson concerning Mr. Trump’s claim of executive privilege to presidential documents in the possession of the archivist, linked in the Notes below, analyzes the scope of Congress’s authority to conduct investigations. See pages 20-22, 42-46, 54-57.
Congress sometimes refers matters it has investigated to the Department of Justice for criminal prosecution. The DOJ on its own initiative sometimes conducts criminal investigations for conduct that is the subject of congressional inquiry.
Hence, any subject of or participant in a congressional investigation who gives testimony is at risk of self-incrimination in a criminal prosecution.
The Select Committee’s inquiry into January 6th and, presumably, that by the Department of Justice of the same or overlapping conduct by Mr. Trump, discussed below, also present a classic example of such parallel investigations.
The Iran/Contra Affair, which resulted in parallel investigations by Congress and the DOJ, also discussed below, is a cautionary tale for Congress and the Select Committee in this precise circumstance.
Finally, it is similarly common that private litigants bring civil claims against defendants, alleging fraud for example, and that state or federal agencies investigate and file criminal charges for the same or overlapping conduct. Any defendant who gives testimony as part of a civil lawsuit is at risk of self-incrimination in a parallel criminal investigation or prosecution. If he remains silent on Fifth Amendment grounds, however, the judge or jury in the civil case may draw an adverse inference from his refusal to answer questions on such grounds.
A civil lawsuit against Mr. Trump for sexual assault, conduct criminally chargeable as rape if within the statute of limitations, for example, could result in parallel investigations of the same conduct. Were Mr. Trump forced to sit for a deposition in the civil case, the plaintiff could ask the judge or jury to draw an adverse inference against him from his refusal to answer the questions under the Fifth Amendment, helping to carry her burden of proof that, yes, he raped her. If he testified that he’d never met the plaintiff, she was lying to sell a book, and she was not his type, the testimony could be used in a criminal perjury prosecution if, say, the victim produced photographs of them together and/or certain DNA evidence on her clothing matching that of Mr. Trump.
I purposefully left out the scenario where Mr. Trump tells the truth.
Untitled, Oil on Panel, 18" x 24", Richard J Van Wagoner, Circa 1990, Courtesy Marilyn Jones**
Parallel Investigations of Mr. Trump
At least two sets of parallel civil and criminal investigations of Trump-related persons and entities appear to be under way.
District Attorney of New York City and New York Attorney General
The City of New York is conducting a criminal investigation of Trump-related people and organizations for falsifying business records, tax fraud, insurance fraud, and enterprise fraud (state RICO). This summer, a grand jury convened by the New York District Attorney’s Office charged the Trump Organization and its CFO Allen Weisselberg in a 15-count 24-page indictment. The indictment “presents a sweeping tax fraud case.”
Recent reporting suggests the City of New York has expanded its criminal investigation and is now “zeroing in on whether Mr. Trump or his company inflated the value of some of his properties while trying to secure financing from potential lenders,” which could establish a pattern of defrauding lenders.
Meanwhile, New York State Attorney General Letitia James is conducting her own sweeping civil fraud investigation of Mr. Trump and related entities. Reporting suggests the inquiry concerns whether the Trump Organization “manipulated the value of assets for loans and tax breaks.” She wants to place Mr. Trump under oath and take his deposition on January 7, 2022 as part of that civil inquiry. If she finds evidence of wrongdoing, she could sue the wrongdoer(s), but not bring criminal charges.
As proof that the parallel investigations overlap in scope and substance, Attorney General James’s office formally began working together with the New York District Attorney’s office in May 2021. Evidence collected in the civil investigation could therefore be used as part of the New York District Attorney’s criminal investigation.
And vice versa.
Even if they were not working together, one office could issue a subpoena to the other office to obtain the results of the latter’s investigation.
Reporting suggests the New York Attorney General served Mr. Trump with a subpoena to appear and testify on January 7 (timing is everything) in connection with her investigation of bank and tax fraud. Mr. Trump’s likely next move will be to challenge the subpoena in court on the basis, among others, that forcing him to give evidence that will be used in parallel civil and criminal investigations is unfair and constitutionally suspect. He will ask the court to quash the subpoena or stay at least that portion of the Attorney General’s investigation until the completion of the District Attorney’s criminal investigation and any prosecution for the same or overlapping conduct the Attorney General is investigating.
“The Constitution does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings.” In their discretion, courts look to several factors in assessing whether to stay civil proceedings. Those factors include (1) the similarity of the underlying facts in the respective civil and criminal investigations or proceedings; (2) the status of the criminal proceedings, that is, at what stage is the criminal investigation or has it progressed to charges for related conduct; (3) the extent to which the plaintiff is prejudiced by a delay; (4) the potential criminal jeopardy facing the defendant if the court denies a stay; (5) judicial efficiency; and (6) the public interest in the pending investigations.
If the court refuses to quash the subpoena or stay the Attorney General’s investigation, Trump will of course attempt to stay the court’s decision on appeal and run out the clock with multiple calculated delays. If he is forced to sit for the sworn testimony, his choices will be to invoke his rights under the Fifth Amendment, testify truthfully, or lie. If he invokes the Fifth Amendment, the Attorney General will, likely, ask the court in any future civil case to draw an adverse inference from his refusal to answer the questions. If he testifies truthfully or lies, the evidence will likely be used in the Attorney General’s lawsuit and any future prosecution of Mr. Trump by the District Attorney.
Congress and The Department of Justice
The Select Committee to Investigate the January 6th Attack on the United States Capitol is charged with investigating and reporting on the “facts, circumstances, and causes relating to” the January 6th attack on the Capital and its “interference with the peaceful transfer of power.” H.R. Res. 503, 117th Cong. § 3(1)(2021). Recent reporting suggests the Special Committee has interviewed or taken testimony from some 300 witnesses, scores of whom were served with subpoenas, many to produce records and virtually all to appear and testify.
The Select Committee has yet to subpoena Mr. Trump and likely won’t do so until it has exhausted all other sources of information and is fully armed with an otherwise comprehensive, documented understanding of the facts. When the Committee subpoenas Mr. Trump to appear and testify, he will do what he always does to delay. If they ever get him in the witness chair, his choices will be to invoke his right to remain silent under the Fifth Amendment, answer the questions truthfully, or lie. Lying will be more difficult for him because the Select Committee will be fully armed with a comprehensive set of documented facts with which to confront him, making his denials more difficult and even less credible. So, he will be set up for a criminal prosecution for perjury, a criminal prosecution for evidence he gives, or his widely publicized reliance on the Fifth Amendment right to remain silent that many in the public will infer as evidence of guilt.
Certain witnesses within Mr. Trump’s circle have telegraphed their intent to invoke their Fifth Amendment right against self-incrimination. Others have appeared and refused to answer questions on Fifth Amendment grounds. Properly invoked, the Fifth Amendment provides a near impenetrable shield for the witnesses. Several such witnesses, who claim their innocence, have been publicly accused of crimes by elected officials. While this post does not address whether specific witnesses’ invocation of their right to remain silent withstands legal scrutiny, the Fifth Amendment shields “innocent people as well as the guilty, so long as they have a legitimate basis to believe they could face prosecution.”
Invoking the Fifth Amendment could simply be witnesses’ involvement in a Trump strategy, viz., conspiracy, to obstruct and delay the investigation.
Given the quantity of evidence in the form of hundreds of witnesses and tens of thousands of documents, and the likely imminent access to the presidential records in the possession of the Library of Congress Archivist, it is doubtful the Committee will be materially hindered in completing its investigation by even highly positioned witnesses’ reliance on the right to remain silent. The Committee may therefore be satisfied with the public perception that anyone who invokes the Fifth Amendment in response to Select Committee questions must be guilty of wrongdoing. Indeed, the Select Committee’s report would likely argue the adverse inference against any such witness, that is, the refusal to answer Select Committee questions establishes the witness’ wrongdoing.
If witnesses invoke the Fifth Amendment right against self-incrimination in response to congressional inquiry, Congress has the authority under 18 U.S.C. § 6002 to grant them immunity. Such a grant of immunity removes any Fifth Amendment basis to refuse answering questions posed by the Select Committee. With a grant of immunity, a witness who continues to refuse to answer Select Committee questions can be held in and prosecuted for contempt. While congress cannot immunize the witnesses from potential criminal prosecution through its grant of immunity, by statute the immunity prohibits the Department of Justice from using any immunized congressional testimony against them in subsequent criminal prosecutions.
Unless the witness who invokes the Fifth Amendment right to remain silent based on possible self-incrimination has information that is critical to the Select Committee’s investigation that it cannot otherwise obtain, I seriously doubt it will grant immunity to any key witnesses. That is particularly true with respect to the bigger and biggest fish because the Select Committee will not want to place in play any potential impediments to criminal prosecution.
The Iran/Contra Affair tells a cautionary tale for the Select Committee. Investigation of the scandal teaches that congressional immunity creates its own set of landmines for a subsequent or parallel DOJ investigation or prosecution for the same or overlapping conduct.
Untitled, Oil on Canvas, 24” x 30”, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
Oliver North, an integral player in the Reagan-era political scandal known as the Iran-Contra Affair, was a decorated marine and Vietnam War veteran who served as deputy director for political-military affairs for the National Security Council from 1981 to 1986.
One scandal in which North was instrumental during his tenure at the NSC concerned the diversion of profits from the U.S. sale of weapons to Iran to Contra rebels in Nicaragua. While North thought the diversion was a "neat idea," Congress, which had passed the Boland Amendment making it illegal, didn't.
The following is from a decision by the United States Court of Appeals for the District of Columbia reversing North’s convictions. It explains one set of potential problems with a congressional grant of immunity:
“Congress established two committees charged with investigating the sales of arms to Iran, the diversion of proceeds therefrom to rebels (or ‘Contras’) fighting in Nicaragua, and the attempted cover-up of these activities (controversial events popularly known as ‘the Iran/Contra Affair’). In July of 1987, Lieutenant Colonel Oliver L. North, a former member of the National Security Council (‘NSC’) staff, testified before the Iran/Contra congressional committees. North asserted his Fifth Amendment right not to testify before the committees, but the government compelled his testimony by a grant of use immunity pursuant to 18 U.S.C. § 6002. North testified for six days. His testimony was carried live on national television and radio, replayed on news shows, and analyzed in the public media.
“Contemporaneously with the congressional investigation, and pursuant to the Independent Counsel statute, . . . the Special Division of this Court . . . appointed Lawrence E. Walsh as Independent Counsel (‘IC’) and charged him with the investigation and prosecution of any criminal wrongdoing by government officials in the Iran/Contra events. As a result of the efforts of the IC, North was indicted and tried on twelve counts arising from his role in the Iran/Contra Affair. After extensive pretrial proceedings and a twelve-week trial, North was convicted in May of 1989 on three counts: aiding and abetting an endeavor to obstruct Congress . . . (‘Count 6’); destroying, altering, or removing official NSC documents . . . (‘Count 9’); and accepting an illegal gratuity, consisting of a security system for his home . . . (‘Count 10). North now appeals his convictions on these counts.
“North argues that his Fifth Amendment right against self-incrimination was violated, asserting that the District Court failed to require the IC to establish independent sources for the testimony of witnesses before the grand jury and at trial and to demonstrate that witnesses did not in any way use North's compelled testimony. . . .
“North's argument depends on the long-recognized principle that a predicate to liberal constitutional government is the freedom of a citizen from government compulsion to testify against himself:
“And any compulsory discovery by extorting the party's oath, or compelling the production of his private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power; but it cannot abide the pure atmosphere of political liberty and personal freedom.
“The District Court erred in failing to hold a full hearing . . . to ensure that the IC made no use of North's immunized congressional testimony. North's convictions on all three counts are therefore vacated and remanded to the District Court for a . . . proceeding consistent with this opinion.”
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com. Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway, dropped on November 17, 2020. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. The Contortionists is not, however, for the faint of heart.
**Richard J Van Wagoner is my father. His list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in many traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father's work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his artwork. The photographs of my father's art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers.
United States v. Oliver North, 910 F.2d 843 (D.C. Cir. 1990)
Keating v. Office of Thrift Supervision, 45 F.3d 322, 326 (9th Cir. 1995).
SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1375 (D.C. Cir. 1980).
18 U.S.C. § 6002:
Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to—
(1) a court or grand jury of the United States,
(2) an agency of the United States, or
(3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House,
and the person presiding over the proceeding communicates to the witness an order issued under this title, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.