In a column for MSNBC, attorney Teri Kanefield warns supporters of Donald Trump who have been subpoenaed to appear before the House committee investigating the Jan 6th riot that invoking the 5th Amendment against self-incrimination is not a "get out of jail free card" and could compound their legal woes.
According to Kanefield, political provocateurs Alex Jones and Roger Stone, former Justice Department official Jeffrey Clark and Trump "coup memo" attorney John Eastman have indicated they plan to plead the 5th before the committee -- and that it would be a big mistake.
"While these witnesses may be able to avoid testifying before the select committee by standing on the Fifth, they are merely postponing — and perhaps increasing — their future legal woes," she wrote.
According to the attorney, Rep. Liz Cheney (R-WY) has already addressed plans by former Trump officials to do everything they can to avoid speaking, with the lawmaker telling reporters, "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.”
Kanefield adds that Cheney is correct.
"In a criminal proceeding, a defendant’s silence cannot be used against him. In fact, the jury can be instructed not to draw any inferences from the defendant's silence," Kaenefield explained. "But in a noncriminal proceeding, the invocation of the privilege is limited to those circumstances in which the person invoking the privilege reasonably believes that his disclosures could be used in a criminal prosecution or could lead to other evidence that could be so used. But if invoked, an adverse inference can be drawn when 'independent evidence exists of the fact to which the party refuses to answer.'"
With that in mind, the attorney added, "In the cases of Stone, Eastman and Clark, compelling independent evidence exists," and suggested that refusal to answer may hand investigators new leads to follow that could lead to further criminal charges.
"These defendants can’t — and shouldn’t — be forced to talk once they exert their Fifth Amendment privilege to individual questions, but the public, the committee — and criminal investigators — can theorize about what that silence means," she explained. "We can also assume that their refusal to talk will not derail the work of the committee. Because of the Fifth Amendment, prosecutors are accustomed to putting cases together without help from defendants."
The attorney added, "More than 250 witnesses, including White House and other administration insiders, are cooperating. Records are often duplicative. An email, for example, can show up in the inboxes of lots of people. All you need is one willing to show the email to the committee."
You can read more here.