News reports say that President Clinton’s brother, Roger, is considering invoking his Fifth Amendment privilege against self-incrimination when he is called to testify before the New York grand jury investigating Bill Clinton’s pardons. If you take the Fifth, can prosecutors get you to talk?
Asserting one’s Fifth Amendment right against being “compelled in any criminal case to be a witness against himself” usually means refusing to answer any questions. If a witness tries to answer questions selectively, those answers can be interpreted as a waiver of Fifth Amendment privilege. And once it’s waived, a witness cannot reassert the privilege. It is possible for a prosecutor and a defense lawyer to arrange before testimony that a witness or defendant will answer certain non-incriminatory questions without that being interpreted as a Fifth Amendment waiver.
But the best way for a prosecutor to get testimony from a reluctant witness is to grant immunity from prosecution. That’s why we’ll hear what Denise Rich, ex-wife of financier Marc Rich, has to say about the machinations that led to her former husband’s pardon. According to Time, Denise Rich has struck a deal with prosecutors that none of her testimony can be used against her. Once a prosecutor grants immunity, the threat of being a witness against oneself evaporates, and the person is compelled to testify. Refuse, and you can be held in contempt of court. In another Clinton investigation, Whitewater, the former president’s former business partner, Susan McDougal, was granted immunity but refused to testify before a grand jury and spent almost two years in jail for contempt.
During its Clinton pardon investigation, Congress did not offer immunity agreements to the witnesses who invoked the Fifth Amendment because such immunity would have interfered with the parallel federal criminal investigation now moving ahead in New York. Although invoking the Fifth can’t be introduced later as evidence against you in trial, it doesn’t tend to go over well in the court of popular opinion. That’s why Bill Clinton, while musing on the ontological meaning of “is” under oath, never took the Fifth.
Explainer thanks Akhil Reed Amar of Yale Law School.
