Recently in Fifth Amendment Privilege Category

April 30, 2012


918333_u_s__capitol_building.jpgDoes Jeffrey Neely know more about testifying before Congress than former Major League pitcher Roger Clemens? It would appear that he does given Mr. Neely's refusal to testify on April 16 at a House Committee on Oversight and Government Reform hearing by invoking his Fifth Amendment right against self-incrimination. Mr. Neely is the General Services Administration official who has come under fire for, among other things, organizing an $823,000 Las Vegas employee conference at taxpayer expense.

Roger Clemens' decision to voluntarily testify before the House Committee on Oversight and Government Reform in February 2008 stands in stark contrast to Mr. Neely's decision to plead the Fifth in response to questioning by the same committee. The risks of the strategy adopted by Mr. Clemens could not be clearer as he begins the third week of his (second) criminal trial for perjury based on his testimony to Congress. Mr. Clemens was indicted on one count of obstruction of Congress, three counts of making false statements and two counts of perjury in connection with his Congressional testimony. If convicted, Mr. Clemens faces 15 to 21 months in prison under U.S. sentencing guidelines.

The predicament that Mr. Clemens finds himself is a reminder of the perils of testifying before a Congressional committee. These perils plainly include the risk of criminal prosecution. Specifically, 18 U.S.C. § 1505 criminalizes obstructing justice by, in pertinent part, falsely testifying before either house of Congress or any committee of either house. Penalties for violating 18 U.S.C. § 1505 include criminal fines and imprisonment of up to 5 years.

The lesson learned here is that before testifying before Congress, one should seriously consider invoking your Fifth Amendment right against self-incrimination, or "taking 5" as most white collar attorneys often refer to the practice. Invoking the Fifth Amendment may also force the Congressional committee which is seeking your testimony to grant you immunity. The congressional immunity statute, 18 U.S.C. § 6005, allows a single house or committee of Congress to grant immunity to a witness who testifies at a congressional hearing. The immunity grant forbids a prosecutor from using the hearing testimony as evidence at a criminal trial against that witness, and also forbids the prosecutor from using the testimony in any other way, such as gathering leads or influencing witnesses. See 18 U.S.C. § 6002.

Remember, it is better to "take 5" than serve 5.