Misusing the Fifth Amendment at the Solyndra Hearing

by Hans A. von Spakovsky

The Fifth Amendment is often misunderstood. Witness some of the criticism arising from last Friday’s congressional hearing in which two executives of Solyndra, the bankrupt solar energy company, pled the Fifth to avoid answering questions about how the company wangled a $535 million loan guarantee from the Department of Energy. 

Once Solyndra CEO Brian Harrison and CFO Brian Stover asserted their Fifth Amendment right against self-incrimination, Rep. Henry Waxman (D., Calif.) jumped to their aid. He protested when other members of the House Subcommittee on Oversight and Investigation continued questioning the witnesses after they had asserted the privilege. “It’s unseemly and inappropriate for members to be asking questions that you now know they will not answer,” Waxman claimed.

The complaint was especially odd coming from Waxman. He is notorious on Capitol Hill for his incessant, merciless badgering of witnesses appearing before committees.  One suspects that his objection was motivated more by political interests (Solyndra’s major backers are big Obama contributors) than by concern for “seemly” behavior.

But, motivations aside, Waxman’s assertion that it was inappropriate for members to continue asking questions is also legally incorrect. The Solyndra executives sought to use the Fifth Amendment as a broad shield to refuse answering any questions. However, the Fifth doesn’t work that way. 

The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself” (emphasis added). Generally, it cannot be asserted to avoid answering questions in a purely civil matter. 

Now, a witness can invoke it in a civil proceeding if he “has reasonable cause to apprehend” possible criminal liability (Hoffman v. U.S., 1951). Thus, a witness can invoke the privilege in “any proceeding, civil or criminal, administrative, judicial, investigatory or adjudicatory” (Kastigar v. U.S., 1972). This includes a congressional hearing.

However, when a witness invokes the Fifth Amendment, he can use it only to avoid answering specific questions that will incriminate him or potentially link him to possible criminal liability. He cannot use it to avoid answering questions because he fears being embarrassed by his answer or because he believes it will cause political damage. 

A prosecutor can’t continue to question a witness before a grand jury or regular criminal jury when the prosecutor knows  that the witness has a valid Fifth Amendment privilege that prevents him from testifying to the jury. This prevents prosecutors from abusing their office and creating the unfair impression in front of the jury that the witness has something to hide.

However, in civil depositions (which are similar to a congressional hearing), there is no judge present to rule immediately on the validity of the Fifth Amendment privilege being asserted by a witness. Thus, the lawyer questioning the witness in such a case is not barred from continuing to ask questions the moment a witness asserts the Fifth Amendment in response to his first question. In fact, the lawyer has the right to continue to ask questions to establish the parameters (and the facts) around which the witness is asserting the privilege. This is particularly important because, if the witness refuses to answer nonincriminating questions, it raises a red flag and may be evidence that he is misusing the privilege. That evasion is a vital consideration for a judge who later considers whether the witness improperly invoked the privilege and should be held in contempt or undergo other penalties in the civil matter for abusing the privilege.

As a legal matter, Friday’s congressional hearing was no different than a civil deposition. The subcommittee members had the right (and some would say the obligation) to continue to ask Harrison and Stover questions to establish whether they were properly invoking the privilege or misusing it as an overbroad shield to avoid answering nonincriminating, but politically embarrassing questions. The legislators were engaged in proper congressional oversight and a perfectly legitimate inquiry into how public funds were used. 

The continued questioning clearly revealed that the Solyndra executives were abusing their Fifth Amendment privilege. They refused to answer all questions, including those that had no relevance whatsoever to any possible criminal prosecution or criminal liability. 

For example, Rep. Joe Barton (R., Texas) asked Harrison and Stover whether they thought that “the American people who invested over a half a billion dollars deserve to know what happened to that money.” Granted, the question was asked by a politician for political purposes, something that happens all the time in congressional hearings. But under no set of circumstances could the answer to that question (yes or no) possibly incriminate the speaker under any federal criminal statute. 

So what happened on Friday is that the Solyndra executives, aided and abetted by Congressman Waxman as well as Rep. Diana DeGette (D., Colo.), abused the Fifth Amendment privilege to avoid answering politically embarrassing questions. DeGette unwittingly confirmed this misuse when she accused the Republicans on the Subcommittee of “a cheap gimmick to lob out political questions designed for press and not to actually get to the bottom of an investigation.” You can’t use the Fifth Amendment to avoid answering “political questions” — only questions designed to “get to the bottom of an investigation” that may pose criminal liability for those being investigated.

The questioning was not futile. It revealed some important facts. By refusing to answer certain specific questions, the Solyndra executives told us that they believe they are risking criminal liability over:

— The accuracy of the documents and information they submitted to DOE, OMB, and their investors;
— The “rosy picture of the company” they presented when they talked to Congress in July given Solyndra’s actual deplorable financial condition;
— The frequent meetings between Solyndra executives and investors and “officials in the Obama White House;”
— Whether the executives discussed the perilous condition of Solyndra with investor (and Obama bundler) George Kaiser;
— The illegal subordination of the government’s loan to Solyndra’s private investors, including Kaiser; and
— The payment of possible bonuses to Solyndra officials prior to the bankruptcy filing when the company was in dire financial straits.

So, contrary to Congressman Waxman’s complaints, the persistent questioning by Chairman Cliff Stearns (R., Fla.) and other legislators helped establish the range of possible criminal violations that may have occurred in this financial fiasco.

— Hans von Spakovsky is senior legal fellow in The Heritage Foundation’s Center for Legal and Judicial Studies.

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