03/18/2014
Jackson: Fifth Amendment getting a workout in D.C., Trenton
Politically charged investigations from opposite ends of the partisan spectrum in Washington and Trenton are aimed at former government officials who are believed to have abused their power.
But the investigators, wielding the power of the U.S. Congress and the New Jersey Legislature, are up against an even more powerful force in the Constitution’s Fifth Amendment.
In Washington, a Republican committee chairman was infuriated and threatened to file contempt charges after a former official in the administration of President Obama, a Democrat, refused to testify about the treatment of Tea Party groups seeking tax-exempt status. In Trenton, a committee controlled by Democrats went to court to force two former confidants of Governor Christie, a Republican, to turn over subpoenaed records related to the closure of Fort Lee access lanes to the George Washington Bridge.
In both cases, the targets cited their Fifth Amendment right against self-incrimination. Now legal experts say there is little chance they will ever have to testify before either committee unless they are offered immunity.
The target in Washington is Lois Lerner, a former Internal Revenue Service official who on March 5 cited her right not to answer questions before the House Oversight and Government Reform Committee chaired by Rep. Darrell Issa, R-Calif.
The targets in Superior Court in Trenton last week were Bridget Anne Kelly and Bill Stepien, Christie’s former deputy chief of staff and campaign manager, respectively. Their lawyers argued that they should not have to turn over emails, text messages and other records to a joint legislative committee chaired by Sen. Loretta Weinberg, D-Teaneck, and Assemblyman John Wisniewski, DMiddlesex.
In the political world, the invective that Republicans have heaped on Lerner is easily matched by the heat that Democrats have aimed at Stepien and especially Kelly, who wrote the infamous “time for some traffic
problems in Fort Lee” email.
Legal shield
Despite the political pressure, they both have the same legal shield against being compelled to testify.
David Wildstein, a former Christie appointee to the Port Authority who oversaw the lane closures after receiving Kelly’s email, turned over his email to the committee but declined to testify. He has been cited for contempt, a misdemeanor under New Jersey law, but his attorney is challenging the state’s right to bring the charge.
“The Fifth Amendment with respect to testimony is extremely robust,” said Duke University law Professor Samuel W. Buell.
“The only way to get around it, really, is either with immunity or some kind of waiver argument, that the witness already told it to somebody else, or was already prosecuted for it.”
Legal experts said Kelly and Stepien may be forced to provide the documents sought by the Legislative Select Committee, because the privilege for protecting documents is much narrower.
But as last week’s hearing showed, the issues involved are complex, and a key question is whether the delivery of documents is a form of testimony that could be construed as providing incriminating information.
The Supreme Court spelled out how that could happen in overturning the conviction of Webster Hubbell in 2000. Hubbell had been convicted by Kenneth Starr, the special prosecutor in the Whitewater investigation during the Clinton administration, of tax charges related to documents Hubbell provided in response to a subpoena.
Third parties
That was the point Kelly’s attorney, Michael Critchley, was making in court last week when he would not concede that Kelly had written the “time for some traffic problems” email, according to Stanley Brand, a Washington attorney whose practice focuses on defending people facing government investigations.
“What Critchley is saying is if you send me a subpoena for documents with a description and I acknowledge that by sending a document and authenticate it as my document, I’m in effect testifying against myself,” Brand said.
Several attorneys noted that federal prosecutors often seek records from a third party rather than a witness for this reason, such as sending subpoenas to an Internet provider for emails and a bank for financial records. Third parties, like banks, cannot assert Fifth Amendment rights on behalf of clients.
Still, Christie’s critics may think Kelly and Stepien are using the Fifth Amendment to conceal Christie’s role in a vindictive traffic nightmare, just as Obama’s critics may think Lerner is trying to cover up an administration plot to use the IRS to harass the Tea Party. Proving that a Fifth Amendment claim is invalid is nearly impossible, however.
“It often is difficult for congressional committees [as well as courts] to determine whether a witness’s assertion of the Fifth Amendment privilege is based on a reasonable fear of self-incrimination,” attorney James Hamilton, author of “The Power to Probe: A Study of Congressional Investigations,” wrote in a 2007 article in the American Criminal Law Review.
“Any inquiry into this issue could force the witness to discuss the nature of the conduct in question and thus effectively forfeit the privilege,” the article said.
Issa has argued that because Lerner gave an opening statement declaring her innocence before refusing to answer questions at a hearing last year, she waived her right not to testify and could face contempt charges.
Buell argued, however, that that does not amount to a waiver.
“You’re allowed to say, ‘I don’t think I did anything wrong, but I can’t be sure the government is not going to prosecute me because they have some theory I did do something wrong,’ ” Buell said.
There is no dispute that the U.S. attorney in Newark has launched a criminal investigation into the George Washington Bridge lane closures.
While attorneys for Kelly, Stepien and Wildstein say they have not been subpoenaed, they have been invited to speak with prosecutors and investigators, and declined.
“Courts are extxremely reluctant to challenge the assertion with regard to testimony unless it seems completely frivolous,” Buell said. “That’s why it’s very rare Congress is able to force someone to testify, in the absence of immunity.”
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Jackson: Fifth Amendment getting a workout in D.C., Trenton
Politically charged investigations from opposite ends of the partisan spectrum in Washington and Trenton are aimed at former government officials who are believed to have abused their power.
But the investigators, wielding the power of the U.S. Congress and the New Jersey Legislature, are up against an even more powerful force in the Constitution’s Fifth Amendment.
In Washington, a Republican committee chairman was infuriated and threatened to file contempt charges after a former official in the administration of President Obama, a Democrat, refused to testify about the treatment of Tea Party groups seeking tax-exempt status. In Trenton, a committee controlled by Democrats went to court to force two former confidants of Governor Christie, a Republican, to turn over subpoenaed records related to the closure of Fort Lee access lanes to the George Washington Bridge.
In both cases, the targets cited their Fifth Amendment right against self-incrimination. Now legal experts say there is little chance they will ever have to testify before either committee unless they are offered immunity.
The target in Washington is Lois Lerner, a former Internal Revenue Service official who on March 5 cited her right not to answer questions before the House Oversight and Government Reform Committee chaired by Rep. Darrell Issa, R-Calif.
The targets in Superior Court in Trenton last week were Bridget Anne Kelly and Bill Stepien, Christie’s former deputy chief of staff and campaign manager, respectively. Their lawyers argued that they should not have to turn over emails, text messages and other records to a joint legislative committee chaired by Sen. Loretta Weinberg, D-Teaneck, and Assemblyman John Wisniewski, DMiddlesex.
In the political world, the invective that Republicans have heaped on Lerner is easily matched by the heat that Democrats have aimed at Stepien and especially Kelly, who wrote the infamous “time for some traffic
problems in Fort Lee” email.
Legal shield
Despite the political pressure, they both have the same legal shield against being compelled to testify.
David Wildstein, a former Christie appointee to the Port Authority who oversaw the lane closures after receiving Kelly’s email, turned over his email to the committee but declined to testify. He has been cited for contempt, a misdemeanor under New Jersey law, but his attorney is challenging the state’s right to bring the charge.
“The Fifth Amendment with respect to testimony is extremely robust,” said Duke University law Professor Samuel W. Buell.
“The only way to get around it, really, is either with immunity or some kind of waiver argument, that the witness already told it to somebody else, or was already prosecuted for it.”
Legal experts said Kelly and Stepien may be forced to provide the documents sought by the Legislative Select Committee, because the privilege for protecting documents is much narrower.
But as last week’s hearing showed, the issues involved are complex, and a key question is whether the delivery of documents is a form of testimony that could be construed as providing incriminating information.
The Supreme Court spelled out how that could happen in overturning the conviction of Webster Hubbell in 2000. Hubbell had been convicted by Kenneth Starr, the special prosecutor in the Whitewater investigation during the Clinton administration, of tax charges related to documents Hubbell provided in response to a subpoena.
Third parties
That was the point Kelly’s attorney, Michael Critchley, was making in court last week when he would not concede that Kelly had written the “time for some traffic problems” email, according to Stanley Brand, a Washington attorney whose practice focuses on defending people facing government investigations.
“What Critchley is saying is if you send me a subpoena for documents with a description and I acknowledge that by sending a document and authenticate it as my document, I’m in effect testifying against myself,” Brand said.
Several attorneys noted that federal prosecutors often seek records from a third party rather than a witness for this reason, such as sending subpoenas to an Internet provider for emails and a bank for financial records. Third parties, like banks, cannot assert Fifth Amendment rights on behalf of clients.
Still, Christie’s critics may think Kelly and Stepien are using the Fifth Amendment to conceal Christie’s role in a vindictive traffic nightmare, just as Obama’s critics may think Lerner is trying to cover up an administration plot to use the IRS to harass the Tea Party. Proving that a Fifth Amendment claim is invalid is nearly impossible, however.
“It often is difficult for congressional committees [as well as courts] to determine whether a witness’s assertion of the Fifth Amendment privilege is based on a reasonable fear of self-incrimination,” attorney James Hamilton, author of “The Power to Probe: A Study of Congressional Investigations,” wrote in a 2007 article in the American Criminal Law Review.
“Any inquiry into this issue could force the witness to discuss the nature of the conduct in question and thus effectively forfeit the privilege,” the article said.
Issa has argued that because Lerner gave an opening statement declaring her innocence before refusing to answer questions at a hearing last year, she waived her right not to testify and could face contempt charges.
Buell argued, however, that that does not amount to a waiver.
“You’re allowed to say, ‘I don’t think I did anything wrong, but I can’t be sure the government is not going to prosecute me because they have some theory I did do something wrong,’ ” Buell said.
There is no dispute that the U.S. attorney in Newark has launched a criminal investigation into the George Washington Bridge lane closures.
While attorneys for Kelly, Stepien and Wildstein say they have not been subpoenaed, they have been invited to speak with prosecutors and investigators, and declined.
“Courts are extxremely reluctant to challenge the assertion with regard to testimony unless it seems completely frivolous,” Buell said. “That’s why it’s very rare Congress is able to force someone to testify, in the absence of immunity.”
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