Abusing the 5th Amendment

Terry H. Schwadron

Dec. 19. 2021

Roger Stone, the self-proclaimed elections trickster who was part of the planning group for Donald Trump before the Jan. 6 Capitol attacks, became the third Team Trump member to refuse to testify to a congressional committee by claiming his Fifth Amendment protections.

The others are Jeffrey Clark, the former Justice Department official who was priming to take over as a compliant Trump attorney general, and John Eastman, the lawyer who put the plan for overthrow of election results onto paper as an outline for plotters to follow by having former Vice President Mike Pence invalidate election certification.

We generally understand “taking the Fifth” to mean asserting a right against self-incrimination in a crime. Thus, at a criminal trial, for example, a witness cannot be compelled to speak about matters that would put that witness in legal jeopardy.

But what Stone said on Friday in refusing his committee subpoena was different.

“I did invoke my Fifth Amendment rights to every question not because I have done anything wrong, but because I am fully aware of the House Democrats’ long history of fabricating perjury charges on the basis of comments that are innocuous, material or irrelevant,” Stone told reporters as he was leaving.

It’s an interesting argument. On the one hand, this is a convenient omission of testimony in a congressional committee — not a criminal trial — based not on the possibility of self-incrimination but based on I-don’t-like-the-questions and perceived partisanship.

At the same time, a quote of Trump himself talking about the Fifth Amendment is resurfacing as his allies use it with the House committee as excuse for silence or non-cooperation over Jan. 6 events. On the campaign trail in 2016, Trump bashed Hillary Clinton after some members of her staff invoked the amendment during a different congressional investigation. “You see the mob takes the Fifth,” he said during one rally in Iowa. “If you’re innocent, why are you taking the Fifth Amendment?”

Planning and Financing Jan. 6

Stone was in the Capitol, was part of a planning group that met at the Willard Hotel, was part of the rally on the Washington Mall that day but did not personally go to the Capitol. So, he denies any involvement with the resulting violence. The committee staff has said Stone “promoted his attendance at the rallies and solicited support to pay for security,” and wants his version of planning around the events of the day.

There is little doubt that these Fifth Amendment claims will become another contempt of Congress case, which eventually could surface as a criminal charge, following the Steve Bannon example, and now facing former Chief of Staff Mark Meadows.

The committee, which has plowed through more than 300 witnesses, likely has plenty of documents and testimony from others to establish that Jan. 6 was a culmination of months of election resistance and pursuit of Big Lie plotting and fund-raising. We have no idea just how crucial is the testimony of Stone or any other specific witness.

But what we do share as public interest are two things: We want a full explanation of what happened on that day, with appropriate referrals for civil, criminal, or procedural follow-ups to make sure it does not recur. And we want a general shared understanding that there is such a thing as truth about the rioting we all witnessed live by television images.

To achieve those goals, we share interest in support for judicial and legal proceedings that apply equally to those who broke into the Capitol and those who planned and directed the insurrection attempt, an attack on our elections and democracy.

So, fine, claim self-incrimination protections, if you must, Mr. Stone and others, but do so understanding that the same justice system and Constitution that affords those protections requires that you obey the rest of the relevant rules, including accepting the outcome of elections.

What the Fifth Does

The Fifth Amendment includes five separate rights, including the right to remain silent in a criminal proceeding, scholars and court decisions have found. Those include what we call double jeopardy or facing the same charge more than once, the right to a fair trial, and against the taking of property by the government without compensation.

It’s not free space to order up an insurrection against the government and then not testify about doing so.

Through his lawyer, Stone had already said he would comply with the committee subpoena but respond to each question from the committee by asserting the Fifth Amendment. But rather than “self-incrimination,” he attacked Democrats for what he said was an attempt to “frame” him. “I will invoke my 5th Amendment right not to answer their loaded questions — not because I have done anything wrong — but because I recognize the whole thing as an elaborate trap,” Stone said.

That’s not the protection here. The committee ought to move swiftly to keep Stone and others claiming the Fifth as a political shield from doing so. Save it for a courtroom. Let’s be honest here, Stone is just doing his part to make the committee work harder and is seeking to protect Trump himself and the Trump Big Steal election claims effort.

In other words, we all can see that Stone is misusing the claim to Fifth Amendment protections for political reasons and not specific responsibility for self-criminality.

It’s relevant that a week after Jan. 6, Trump commuted Stone’s conviction and his ordered imprisonment and fines for lying to Congress and obstructing its investigation on Russian election interference to protect Trump.

If the committee — and presumably the Justice Department, if it ever acts formally in the Jan. 6 matters — finds evidence for involvement in a crime, having claimed these Fifth Amendment protections should be meaningless in whether criminal charges are justified and provable.