Some key witnesses in the Jan. 6 investigation have signaled they intend to invoke their Fifth Amendment rights, but the House select committee has some options for obtaining their testimony.
Conservative attorney John Eastman, who drafted a strategy to block certification of Joe Biden's election win; former Justice Department lawyer Jeffrey Clark; and longtime Trump ally Roger Stone have all indicated they will invoke their constitutional right against self-incrimination, but that doesn't entirely get them off the hook, reported Politico.
“This is, in my view, a last-ditch attempt to delay the select committee’s proceedings,” said committee chairman Bennie Thompson (D-MS). “However, a Fifth Amendment privilege assertion is a weighty one.”
The Fifth Amendment is meant to protect witnesses who fear they could be prosecuted over the testimony they provide, and Eastman, Clark and Stone have all been publicly accused of crimes by elected officials.
“It’s remarkable that so many people in Donald Trump’s orbit apparently believe that if they testify they may expose themselves to criminal prosecution,” said Rep. Adam Schiff (D-CA).
Thompson said the committee is considering an offer of immunity to Mark Meadows that would prevent his testimony from being used against him in future criminal prosecution, as Congress did to obtained Oliver North's testimony in the Iran-Contra probe, or lawmakers could file a civil contempt lawsuit and ask a judge to review the witness' claim -- but that could take awhile and isn't guaranteed to work.
“Courts will be reluctant to order witnesses to testify," said said Barb McQuade, former U.S. Attorney for the Eastern District of Michigan, "if there is any potential for prosecution."
Some House Democrats have discussed bypassing the Justice Department and arresting uncooperative witnesses for inherent contempt, but the House general counsel doesn't believe that's realistic and warns that it could be abused by an inherently political body.
One leading criminal defense attorney in Washington suggested the committee force witnesses to plead the Fifth in public.
“I suspect the specter of claiming the right against self-incrimination in a televised session would be a deterrent,” said William Jeffress, who represented Richard Nixon after he resigned from the presidency.