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Jan. 6 panel faces new test as first witness pleads the Fifth
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 will convene a special Saturday deposition for Clark, where they stress 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.
The DOJ has already pursued such 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.”
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.
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.
“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.
"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.
thehill.com
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 will convene a special Saturday deposition for Clark, where they stress 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.
The DOJ has already pursued such 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.”
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.
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.
“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.
"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.
Jan. 6 panel faces new test as first witness pleads the Fifth
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 …
thehill.com
