Calling Witnesses Who Plan to Take the Fifth in Congress

Nevertheless, the Legal Ethics Committee of the D.C. Bar still has on its books a 33-year-old opinion concluding that a lawyer licensed there and employed by a committee of a house of Congress violates the ethical standards of that jurisdiction if, in carrying out the wishes of the committee for which he or she works, the lawyer participates in subpoenaing a witness to testify when notified in advance that the witness plans to take the Fifth. Opinion No. 31, D.C. Legal Ethics Committee, March 29, 1977. The opinion is repeatedly cited by counsel who claim that their congressionally subpoenaed clients will assert the Fifth Amendment and refuse to answer any questions, and just as repeatedly ignored by the lawyers on the Hill, who are quite confident that their actions violate no ethical precepts and, in any event, do not subject them to any disciplinary threat. The opinion is an understandable response to the abuses of the McCarthy era of the 1950s, but it mistakenly assumes that there can be no valid reason for calling the witness, and ignores important judicial precedents that predated the opinion.

Not surprisingly, despite the existence of this opinion and the repeated contrary practice, no Congressional lawyer has ever been sanctioned by the D.C. Bar or the D.C. Court of Appeals (which supervises the Bar) for such conduct. First, such conduct is fully protected by the Speech or Debate Clause of the U.S. Constitution. Second, where there is a legitimate legislative purpose for such a subpoena ' including drawing adverse inferences on facts pertinent to proposed legislation or laying the groundwork for a grant of immunity ' there is no ethical violation in pursuing the subpoena or posing questions to the witness.

The Speech or Debate Clause

The Speech or Debate Clause, U.S. Const. Art. I ' 6, provides that no Representative or Senator “shall be questioned in any other place” for “any Speech or Debate in either House.” The Supreme Court has made clear that this absolute prohibition covers any action that is integral to the legislative function, including issuing subpoenas for legislative fact-finding, Eastland v. United States Serviceman's Fund, 421 U.S. 491 (1975), and that legislative aides are protected as fully as Congressmen when carrying out the legislative functions of their principals. Gravel v. United States, 408 U.S. 606 (1972). Both of these decisions predate the D.C. Ethics Committee opinion, which did not cite them, let alone attempt to distinguish them. The constitutional provision and these decisions mean that no bar or court can call to account a lawyer who is carrying out a legislative function assigned to him by a Member or a committee of Congress.

On the merits, the Ethics Committee erred in ignoring the Supreme Court's decision in Baxter v. Palmigiano, handed down a year before its opinion, holding that it is permissible in a civil proceeding to draw an adverse inference from the refusal of a witness to answer pertinent questions. The Court stated that its conclusion was “consistent with the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.”

Baxter v. Palmigiano

The Baxter decision involved the administrative punishment of an inmate who refused to answer in a prison disciplinary matter. If adverse inferences are permissible in that context, then surely adverse inferences are permissible in a congressional oversight or fact-finding hearing. Long before the D.C. Ethics opinion, the federal district court there had noted that, under the circumstances presented, a Congressional witness standing “on his constitutional privilege against self-incrimination ' would have the same effect upon [a] subcommittee's conclusions as if he had confessed guilt.” U.S. v. Icardi, 140 F. Supp. 383, 389 (D.C. D.C. 1956). It is important to recognize that the Fifth Amendment only applies to criminal proceedings, and no witness is subject to jail or fines for taking the Fifth Amendment at a congressional hearing. Of course, it has long been recognized that a witness has an absolute right to assert the Fifth Amendment in congressional proceedings where an honest answer would tend to incriminate the witness.

Legitimate Purposes

While, of course, it is unethical for a lawyer to engage in practices that have “no substantial purpose” and are designed solely to embarrass, burden or harass any person (see Rule 4.4, D.C. Rules of Professional Conduct), there are a number of potential legitimate purposes for a congressional subpoena to a witness whose lawyer claims that the witness will decline to answer questions. Presumably, the Committee has a valid legislative purpose in seeking the testimony of the witness, a presumption the Supreme Court has long applied. Despite the lawyer's protest, the Committee may wish the witness to appear to evaluate the assertion of the privilege to insure that it is being properly invoked by a person who has reasonable cause to fear criminal liability. Further, it has happened that despite the claims of the defense lawyers, witnesses at a hearing decide to forgo the privilege and testify, perhaps in an effort to clarify the record in response to other witnesses or evidence that has been presented at the hearing. Sometimes witnesses insist on making an opening statement at hearings, and thereby waive the privilege as to matters within the scope of their statements. Finally, the Committee may be planning to seek an immunity order for the witness under 18 U.S.C. ' 6005, which requires an individual “who refuses” to answer on the basis of the privilege against self-incrimination. The Committee may legitimately decide that an actual on-the-record refusal is necessary, rather than simply an advance assertion of intention by counsel.

In light of these considerations, this author has asked the D.C. Ethics Committee to withdraw its opinion on the grounds that it was wrongly decided, leads to an unnecessary sense of uncertainty in the legal community practicing before Congress, causes unjustified assertions by private counsel against conscientious public servants, may delay proceedings, and impinges on committee attorneys' exercise of their valid legislative duties. The Committee has this matter under advisement.

This is not to say that attorneys representing witnesses should refrain from urging committee staff to reconsider the issuance of a subpoena based on the likely response of the witness. Committee lawyers and Members should give fair consideration to such requests and be mindful of the impact that public assertion of the Fifth Amendment may have on the putative witness. These valid concerns should invariably be weighed under all of the circumstances presented. A congressional committee is well within its rights to consider whether it needs to make a record for drawing factual inferences from the assertion of the Fifth to support proposed legislation or accomplish needed oversight. It also needs to decide whether it can accomplish its objectives by taking the testimony in executive session to minimize the witness's embarrassment, or whether the need to educate the public as part of the legislative process outweighs such considerations. These are all appropriate matters for the witnesses' counsel to raise in particularized contexts. However, a blanket ethical condemnation of practices that are frequently justified is wrong and leads to counter-productive charges that do not serve the interests of either the potential witness or the Congress.

Conclusion

The D.C. Bar opinion should be withdrawn. Even if it is not, prudence suggests that it should not be relied upon by private practitioners because its premises are faulty, its erroneous conclusions are unenforceable, and it is likely to continue to be ignored by the lawyers in Congress tasked with aiding committees in carrying out their constitutionally assigned fact-finding responsibilities.

Irvin B. Nathan is the General Counsel of the U.S. House of Representatives. The views expressed in this article are his alone and do not necessarily represent those of his employer or any Member or officer of the House. On behalf of a client, he has made a written request to the D. C. Ethics Committee that the Bar opinion discussed in this article be withdrawn.

Federal appellate courts have repeatedly made clear that it is not improper for a prosecutor to call and examine a witness in the grand jury knowing that the witness likely will decline to answer the questions based on the privilege against self-incrimination. United States v. Manujano , 425 U.S. 564 (1976); United States v. Wolfson , 405 F. 2d 779 (2d Cir. 1968); United States v. Duff , 529 F. Supp. 148 (N.D. Ill. 1981). No federal court has set aside an indictment because an individual was forced to assert his right against self-incrimination before the grand jury after his counsel informed prosecutors that he would invoke the Fifth Amendment in response to substantive questions.

Research has indicated that no private lawyer has been sanctioned by a bar association for posing questions to a witness at a civil trial or deposition when the witness repeatedly invoked the Fifth Amendment privilege in refusing to answer the questions. Indeed, the Supreme Court and federal appellate courts have ruled that a jury may draw adverse factual inferences in civil litigation from the invocation of the privilege not only against the individual asserting it but even against the corporation that employed him at the time of the events in question. Baxter v. Palmiagiano , 425 U.S. 308 (1976); Brink's Inc v. New York City , 717 F. 2d 700 (2d Cir. 1983).

The Legal Ethics Committee

Nevertheless, the Legal Ethics Committee of the D.C. Bar still has on its books a 33-year-old opinion concluding that a lawyer licensed there and employed by a committee of a house of Congress violates the ethical standards of that jurisdiction if, in carrying out the wishes of the committee for which he or she works, the lawyer participates in subpoenaing a witness to testify when notified in advance that the witness plans to take the Fifth. Opinion No. 31, D.C. Legal Ethics Committee, March 29, 1977. The opinion is repeatedly cited by counsel who claim that their congressionally subpoenaed clients will assert the Fifth Amendment and refuse to answer any questions, and just as repeatedly ignored by the lawyers on the Hill, who are quite confident that their actions violate no ethical precepts and, in any event, do not subject them to any disciplinary threat. The opinion is an understandable response to the abuses of the McCarthy era of the 1950s, but it mistakenly assumes that there can be no valid reason for calling the witness, and ignores important judicial precedents that predated the opinion.

Not surprisingly, despite the existence of this opinion and the repeated contrary practice, no Congressional lawyer has ever been sanctioned by the D.C. Bar or the D.C. Court of Appeals (which supervises the Bar) for such conduct. First, such conduct is fully protected by the Speech or Debate Clause of the U.S. Constitution. Second, where there is a legitimate legislative purpose for such a subpoena ' including drawing adverse inferences on facts pertinent to proposed legislation or laying the groundwork for a grant of immunity ' there is no ethical violation in pursuing the subpoena or posing questions to the witness.

The Speech or Debate Clause

The Speech or Debate Clause, U.S. Const. Art. I ' 6, provides that no Representative or Senator “shall be questioned in any other place” for “any Speech or Debate in either House.” The Supreme Court has made clear that this absolute prohibition covers any action that is integral to the legislative function, including issuing subpoenas for legislative fact-finding, Eastland v. United States Serviceman's Fund , 421 U.S. 491 (1975), and that legislative aides are protected as fully as Congressmen when carrying out the legislative functions of their principals. Gravel v. United States , 408 U.S. 606 (1972). Both of these decisions predate the D.C. Ethics Committee opinion, which did not cite them, let alone attempt to distinguish them. The constitutional provision and these decisions mean that no bar or court can call to account a lawyer who is carrying out a legislative function assigned to him by a Member or a committee of Congress.

On the merits, the Ethics Committee erred in ignoring the Supreme Court's decision in Baxter v. Palmigiano, handed down a year before its opinion, holding that it is permissible in a civil proceeding to draw an adverse inference from the refusal of a witness to answer pertinent questions. The Court stated that its conclusion was “consistent with the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.”

Baxter v. Palmigiano

The Baxter decision involved the administrative punishment of an inmate who refused to answer in a prison disciplinary matter. If adverse inferences are permissible in that context, then surely adverse inferences are permissible in a congressional oversight or fact-finding hearing. Long before the D.C. Ethics opinion, the federal district court there had noted that, under the circumstances presented, a Congressional witness standing “on his constitutional privilege against self-incrimination ' would have the same effect upon [a] subcommittee's conclusions as if he had confessed guilt.” U.S. v. Icardi , 140 F. Supp. 383, 389 (D.C. D.C. 1956). It is important to recognize that the Fifth Amendment only applies to criminal proceedings, and no witness is subject to jail or fines for taking the Fifth Amendment at a congressional hearing. Of course, it has long been recognized that a witness has an absolute right to assert the Fifth Amendment in congressional proceedings where an honest answer would tend to incriminate the witness.

Legitimate Purposes

While, of course, it is unethical for a lawyer to engage in practices that have “no substantial purpose” and are designed solely to embarrass, burden or harass any person (see Rule 4.4, D.C. Rules of Professional Conduct), there are a number of potential legitimate purposes for a congressional subpoena to a witness whose lawyer claims that the witness will decline to answer questions. Presumably, the Committee has a valid legislative purpose in seeking the testimony of the witness, a presumption the Supreme Court has long applied. Despite the lawyer's protest, the Committee may wish the witness to appear to evaluate the assertion of the privilege to insure that it is being properly invoked by a person who has reasonable cause to fear criminal liability. Further, it has happened that despite the claims of the defense lawyers, witnesses at a hearing decide to forgo the privilege and testify, perhaps in an effort to clarify the record in response to other witnesses or evidence that has been presented at the hearing. Sometimes witnesses insist on making an opening statement at hearings, and thereby waive the privilege as to matters within the scope of their statements. Finally, the Committee may be planning to seek an immunity order for the witness under 18 U.S.C. ' 6005, which requires an individual “who refuses” to answer on the basis of the privilege against self-incrimination. The Committee may legitimately decide that an actual on-the-record refusal is necessary, rather than simply an advance assertion of intention by counsel.

In light of these considerations, this author has asked the D.C. Ethics Committee to withdraw its opinion on the grounds that it was wrongly decided, leads to an unnecessary sense of uncertainty in the legal community practicing before Congress, causes unjustified assertions by private counsel against conscientious public servants, may delay proceedings, and impinges on committee attorneys' exercise of their valid legislative duties. The Committee has this matter under advisement.

This is not to say that attorneys representing witnesses should refrain from urging committee staff to reconsider the issuance of a subpoena based on the likely response of the witness. Committee lawyers and Members should give fair consideration to such requests and be mindful of the impact that public assertion of the Fifth Amendment may have on the putative witness. These valid concerns should invariably be weighed under all of the circumstances presented. A congressional committee is well within its rights to consider whether it needs to make a record for drawing factual inferences from the assertion of the Fifth to support proposed legislation or accomplish needed oversight. It also needs to decide whether it can accomplish its objectives by taking the testimony in executive session to minimize the witness's embarrassment, or whether the need to educate the public as part of the legislative process outweighs such considerations. These are all appropriate matters for the witnesses' counsel to raise in particularized contexts. However, a blanket ethical condemnation of practices that are frequently justified is wrong and leads to counter-productive charges that do not serve the interests of either the potential witness or the Congress.

Conclusion

The D.C. Bar opinion should be withdrawn. Even if it is not, prudence suggests that it should not be relied upon by private practitioners because its premises are faulty, its erroneous conclusions are unenforceable, and it is likely to continue to be ignored by the lawyers in Congress tasked with aiding committees in carrying out their constitutionally assigned fact-finding responsibilities.

Irvin B. Nathan is the General Counsel of the U.S. House of Representatives. The views expressed in this article are his alone and do not necessarily represent those of his employer or any Member or officer of the House. On behalf of a client, he has made a written request to the D. C. Ethics Committee that the Bar opinion discussed in this article be withdrawn.