The Jan. 6 committee is fueling unwarranted distrust of the Fifth Amendment

The House committee investigating the Jan. 6 attack has revealed plenty of jaw-dropping testimony, including those moments in which high-profile witnesses asserted their Fifth Amendment privilege against self-incrimination. 

The committee has made a repeated and short-sighted practice of highlighting such assertions. For example, it shared the recorded, awkward testimony of former national security advisor Michael Flynn repeatedly asserting his privilege. In a second public hearing, the committee noted that John Eastman, the alleged architect of Former President Donald Trump’s machinations to remain in power, asserted his privilege more than 100 times.

The committee should stop making hay of witnesses’ invocation of their Fifth Amendment privilege. This practice contributes to a cultural erosion of an important constitutional right and to a distrust of those who assert it. Indeed, emphasizing a witness’s decision to assert their privilege, as the committee has repeatedly done, does little to advance the committee’s aims, runs counter to our constitutional tradition, and stigmatizes a right nearly as old as the Republic.

Our constitutional privilege against self-incrimination, commonly known as “pleading the Fifth,” is an essential bulwark against government aggression and misconduct. The privilege empowers the accused to defend against overzealous government interrogators who might attempt to obtain confessions through coercion, torture, bribery, browbeating or trickery, practices that modern police interrogators continue to employ. Institutional and cultural distrust of the privilege can and does lead to false confessions, which is the leading cause of wrongful convictions.

Already too many Americans presume guilt when a witness pleads the Fifth. One poll found that more than a third of registered voters still believe that someone who pleads the Fifth is usually guilty. The same poll found that college-educated individuals, in particular, are more likely to incorrectly associate guilt with the assertion of the privilege.

Political leaders often reinforce this cultural distrust of the privilege. Former President Trump, who recently asserted the privilege himself more than 400 times in a single deposition, once claimed that only guilty people, like mobsters, plead the Fifth. “If you’re innocent,” Trump said, “why are you taking the Fifth Amendment?”

No wonder the U.S. Supreme Court has generally forbidden lower courts and prosecutors from telling jurors about an accused’s decision to assert this privilege. Making jurors aware of an accused’s assertions “cuts down on the privilege by making its assertion costly,” the court has warned. Further, highlighting the invocation of the privilege “solemnizes the silence of the accused into evidence against him.”

To be clear, the Jan. 6 committee is not a criminal tribunal, though witnesses in congressional hearings do enjoy the privilege against self-incrimination. Further, this critique — that the committee should stop bringing attention to moments when witnesses plead the Fifth — differs from other arguments that have attempted to delegitimize the committee’s important work. These weak legal arguments are nothing more than laughable partisan attempts to diminish the credibility of the strong and overwhelming evidence that the former president pursued every corrupt means to invalidate an election that he clearly lost fair and square.

Instead, this critique begs the committee to consider the societal impact of its decision to reinforce misguided assumptions about those who assert the privilege. The select committee on Jan. 6 should be especially sensitive given Congress’s history of demonizing individuals who asserted their Fifth Amendment privilege. During the 1950s, for example, the House Committee on Un-American Activities ruined the lives and careers of citizens who invoked the privilege to decline to answer questions about friends, personal beliefs and political activities. The hearings of the House Committee on Un-American Activities, for a generation, popularized the pernicious notion that witnesses who plead the Fifth must be hiding some misconduct.

Further, the committee should be mindful that its audience includes juveniles and young adults, who, from watching the committee, will understandably conclude that pleading the Fifth will lead to mockery, ridicule, insinuation and automatic assumptions of guilt. This is despite the fact that young people, as we have often seen, are vulnerable to having their words misconstrued or manipulated during a police interrogation.  

Last week, the Jan. 6 committee convened to offer closing arguments in their thoughtful and well-substantiated claim that the former president and a band of advisors likely conspired to stage a coup. Prior to the hearing, several of those advisors announced that they had asserted their Fifth Amendment privilege in the face of committee questions. No doubt a congressional staffer has counted the times each advisor asserted the privilege. Another staffer has almost certainly created TikTok-sized clips of these same advisors declining to answer the most basic of civics questions. 

But the committee gains nothing by highlighting the advisors’ decision to plead the Fifth, and it risks further eroding one of the most important rights in the American criminal justice system.

Steven Wright teaches criminal constitutional law at the University of Wisconsin-Madison Law School. He is also the former co-director of the Wisconsin Innocence Project.