Pleading the Fifth: Refuge of scoundrels or protection from government overreach?

This column was originally published on Jeff Neal’s blog, ChiefHRO.com and was republished here with permission from the author.

I read a provocative article by Lisa Rein in yesterday’s Washington Post Federal Eye blog. Titled Pleading the Fifth:  A congressional ritual for senior feds in times of scandal, Lisa’s article reminds us how many times we see people standing before a congressional committee, raising their right hand, pledging to tell the truth, the whole truth, and nothing but the truth, and then citing the Fifth Amendment and refusing to answer questions.

She asks a great question: “The practice raises the question of whether these are brazen bureaucrats who are thwarting the efforts of Congress to hold public servants accountable, or merely victims of partisan politics who are making use of civil service protections that allow them to insulate themselves from questions.”

The article quotes Chris Edward of the Cato Institute, saying “If you’re a shareholder of a company and your employee does something wrong, you can take action against them and there’s no pleading the Fifth. In government, you’ll see misbehavior at agencies like the VA, and Congress can’t get to the bottom of what happened because the officials won’t talk. It’s infuriating.”

It also quotes Rep. Corrine Brown (D-Fla.), ranking Democrat on the House veterans panel, saying “At the end of the day, we simply must find answers and make sure the veterans come first.”

So — are these brazen bureaucrats who are thwarting the efforts of Congress? Or the victims of partisan politics who are using civil service protections? I think the answer is neither. Before I get into why that is true, let’s take a look at the amendment in question.

Fifth Amendment to the Constitution of the United States of America:

“No person shall be held to answer for a capital, or other-wise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Civil servants who refuse to answer questions when called to testify before the House of Representatives or the Senate are not exercising civil service protections. They are exercising a constitutional right guaranteed to everyone.

In many respects, a congressional hearing is a far worse place to be than a court of law. In court, defendants are entitled to representation. Their attorney can object to inappropriate questions that do not adhere to strict standards. They can cross-examine witnesses. Congressional hearings are much different. We have all seen hearings where the intent is to score political points.

The Cato Institute’s argument that that companies can take action without their employees pleading the Fifth is absurd. A commercial entity is not the federal government. It does not have subpoena power. It cannot put you in jail. It cannot fine you. It doesn’t put you on television while it is questioning you. A more appropriate example is what happens when people who are not employees of the federal government are called to testify. Time and time again, we see people who believe they are targets asserting their Fifth amendment right by refusing to “be compelled in any criminal case to be a witness against himself.” 

The Bill of Rights guarantees that individual rights trump political interests. Much like the First Amendment guarantees of freedom of speech, religion, the press, assembly and ability to petition the government, and the Second Amendment guarantees the right to keep and bear arms, the Fifth Amendment protects the people from government overreach and coercion. Federal employees have the same constitutional rights as everyone else.

In fact, unlike people who do not work for the government, federal workers and members of our armed forces have sworn an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic….”

We should not pick and choose the parts of the Constitution we like and try to ignore the rest. We should honor the service of our veterans and ensure they receive the benefits we promised. Congress should exercise its constitutional obligation to provide oversight to the executive branch. They have the right to conduct investigations, subpoena documents and compel testimony, as long as it does not violate the constitutional rights of federal workers or anyone else. Doing so undermines the integrity of the government and places everyone at risk.

Jeff Neal is a senior vice president for ICF International and founder of the blog, ChiefHRO.com. Before coming to ICF, Neal was the chief human capital officer at the Department of Homeland Security and the chief human resources officer at the Defense Logistics Agency

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