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When the Justice Department Takes the Fifth

From Chris Wallace’s interview of Representative Pete Hoekstra (ranking member of the House intelligence committee, also known as “HPSCI”) yesterday:

WALLACE: On Friday, the Justice Department moved to block congressional investigations of the destruction of these CIA tapes, saying that it would jeopardize its own probe.

Congressman Hoekstra, does that mean your committee is going to stand down?

HOEKSTRA: No, I don’t think so. I think what we’re going to do is we want to hold the community accountable for what’s happened with these tapes. I think we will issue subpoenas.

And once these witness appear in front of the committee, then I think we’ll have to make the decision as to whether we’re going to provide them with immunity or not. But our investigation should move forward.

            At first blush, Hoekstra’s reference to the granting of immunity seems like a non sequitur.  After all, he was asked whether HPSCI would continue its investigation of the tape destruction despite DOJ’s apparent opposition.  What does that have to do with whether HPSCI might take the extraordinary step of granting immunity to witnesses, assuming that one or more of these witnesses invoke the Fifth Amendment privilege against self-incrimination? 

The reference to immunity is understandable, however, in the context of Hoekstra’s prior experience in conducting investigations in parallel with ongoing DOJ investigations. In these situations witnesses who are cooperating with DOJ, even those who have already reached a plea agreement or immunity deal, will nonetheless assert a Fifth Amendment privilege vis a vis Congress. This practice stands the purposes of the Fifth Amendment on its head, since the privilege protects individuals from testifying in criminal trials, not in congressional hearings. However, by condoning or encouraging this practice, DOJ can frustrate congressional investigations that it views as nuisances.

An example of how this works is Duke Cunningham, the former congressman now serving time in federal prison for accepting millions of dollars in bribes. Cunningham’s plea agreement required him to cooperate with federal and state law enforcement agents and attorneys, and protected him against potential criminal prosecution for truthful statements made in the course of that cooperation. However, it did not (at least expressly) require cooperation with Congress. The plea agreement also gave DOJ a great deal of leverage over Cunningham because it promised him the possibility of a reduced sentence if his cooperation was satisfactory to the Justice Department.

As a consequence, when HPSCI wanted to interview Cunningham as part of its inquiry (which I led) into his activities as a member of the committee, his lawyer, Lee Blalack, refused to allow Cunningham to cooperate absent permission from the Justice Department. As Blalack more or less acknowledged, his concern was not really that Cunningham would be prosecuted for statements made to HPSCI—instead, he believed that DOJ might retaliate against Cunningham for cooperating with the committee by refusing to seek a reduction in sentence. In effect, this gave DOJ a veto right over Cunningham’s appearance before HPSCI. Thus, when DOJ not only refused to give permission for Cunningham to cooperate but actually asked HPSCI to stop trying to interview him, Blalack informed the committee that Cunningham would not cooperate voluntarily and, if subpoenaed, would assert the Fifth in response to any questions.

What do experiences such as this mean for HPSCI’s investigation into the tape destruction? The chances that HPSCI will actually grant immunity to any witnesses are slim at best. Nor should it do so, at least with respect to witnesses who are cooperating with federal law enforcement. Instead, HPSCI should insist that any agreements, explicit or otherwise, that DOJ reaches with witnesses must also provide for congressional access to these witnesses on the same terms. The Fifth Amendment is supposed to be a shield against compelled self-incrimination in criminal cases, not a sword for the executive branch to use against congressional inquiries.

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