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Motivation

In the United States, one may assert the Fifth Amendment privilege not to testify or otherwise give information that might tend to implicate the speaker in a crime. This is true in any court proceeding, civil or criminal, whether the person asserting the privilege is an accused, a witness, or a party to a civil case. It may be asserted in a Grand Jury or trial proceeding. One may also assert the privilege under police interrogation, or in an administrative proceeding. One may also assert it when testifying before Congress, a state legislature, or any local legislative body. One may also assert it when testifying before a government agency, such as the Interstate Commerce Commission. Asserting the privilege is often informally called "pleading the Fifth", although strictly speaking "pleading" is something that only an accused does (as in "I plead not guilty"). The availability of the privilege in civil cases has been true at least since the Saline Bank case of 1828 (see below).

What would happen if Congress forced you to testify after you invoked your right not to self-incriminate?

If you are forced to testify under Congress and you believe that answering a question would incriminate you. You invoke your right not to incriminate yourself. If Congress is not literate enough i.r.t the law to know that the 5th Amendment protects against self-incrimination and forces you to testify under threat of being held in contempt, what would your recourse for this be?

Is it just as simple as pursuing a 42 U.S. Code § 1983 - Civil action for deprivation of rights lawsuit or is there some other type of justice you could pursue?

Would there be any redress aimed at the speaker or other members of the house that forced you to testify against yourself?

Neil Meyer
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2 Answers2

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Congress and the Fifth Amendment

Congress can't literally "force" you to testify with torture or something.

You would refuse to testify on the ground of the 5th Amendment.

Congress, that is full of lawyers, 30% of House members and 51% of Senators are lawyers, and has many lawyers among the 31,000 staff employees in Congress, understands the 5th Amendment, as applied to Congress, perfectly well. And, you can bring your own lawyer with you to your scheduled time to testify (and in communications with the Congressional committee issuing the subpoena in advance of that time) to educate Congress if it seems ill-informed.

You don't have to say much as a threshold manner to invoke the 5th Amendment right not to testify (although Fifth Amendment objections to some really basic questions like "what is your name", or questions you have no personal connection to like "what is the org chart of the DOD", aren't going to work). The burden is on Congress to show that you can't invoke the 5th Amendment because you don't face a risk of criminal liability.

Congress can also circumvent your 5th Amendment rights by granting you what is called "use immunity" for you testimony, which means that it can't be used against you in a criminal prosecution (other than for lying to Congress or refusing to testify). One way that it can do that, if the criminal law that is a concern is a federal one, is to have the Justice Department agree to provide use immunity for the testimony. If the Justice Department doesn't provide immunity voluntarily, or a risk of state criminal liability is involved, Congress can also ask a judge on the U.S. District Court for the District of Columbia to provide you with use immunity for your testimony from all state and federal crimes as authorized by 18 USC §§ 6001-6005 as noted in the answer from alexg.

Also, corporations do not have a 5th Amendment privilege under U.S. Constitutional law, so the 5th Amendment is not a valid objection to a Congressional subpoena of corporate records (although sometimes some other evidentiary privilege like the attorney-client privilege or doctor-patient confidentiality could be claimed as a defense to producing those records).

Congress would bring a lawsuit in the U.S. District Court for the District of Columbia to hold you in contempt of Congress for refusing to testify. You would present your 5th Amendment defense to the judge. The judge would rule on the question. If you or Congress disagreed with the ruling, the decision could be appealed to the U.S. Court of Appeals for the D.C. Circuit, and conceivably, from there, to the U.S. Supreme Court. This process has produced a modest body of case law, some of which is cited in the answer from alexg.

There have been eleven contempt of Congress prosecutions since 2019. The process is a familiar one to the members of Congress and judges involved in handling it.

Various Forms Of Liability For Congress Related Misconduct

§ 1983 does not apply to Congress

Is it just as simple as pursuing a 42 U.S. Code § 1983 - Civil action for deprivation of rights lawsuit or is there some other type of justice you could pursue?

No.

42 U.S.C. § 1983 applies only to state and local governments and officials (and the D.C. local government and its officials) and only imposes civil liability. It provides in the pertinent part that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia . . .

Bivens actions provide only limited relief

The federal government analog to a § 1983 lawsuit is called a Bivens action (and arises under federal common law. But, the rights its protects are narrower than those protected by § 1983 actions (only a few select rights like the 4th Amendment are protected) and it only applies to executive branch-like activity. It doesn't apply to quasi-legislative or quasi-judicial activity in the executive branch, or to legislative activity in Congress including most Congressional investigations. But Bivens would apply, for example, to misconduct by law enforcement officers employed by Congress in an organization chart way, when they are engaged in law enforcement activities (e.g., if they make an unlawful arrest), even though they are not part of the legislative rather than the executive branch of the federal government.

For example, if the Capitol Police water boarded you during a Congressional committee meeting to get you to testify there (which would violate rights covered by Bivens), you would have a Bivens action claim against the Capitol Police officers who were involved in doing so, although not against the members of Congress involved in presiding over that hearing and asking them to do so.

The Capitol Police officers who were involved would also have criminal liability in this situation under federal law, although I couldn't cite chapter and verse to cite to the exact federal criminal statutes involved without more research.

Members of Congress and Congress itself have legislative immunity

Would there be any redress aimed at the speaker or other members of the house that forced you to testify against yourself?

No.

Members of Congress and the institution itself, have basically absolute immunity from civil liability, subject to a few exceptions where it has expressly waived that immunity by statute, mostly in the area of employment laws for Congressional staffers. The United States government itself, of which Congress is a part, also can't be held criminally liable.

Members of Congress also have immunity from almost all civil and criminal liability for most official acts under the Speech and Debate Clause of the U.S. Constitution. This is found at Article I, Section 6 of the U.S. Constitution and says:

They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Each house of Congress can discipline its own members

Members of Congress who engage is misconduct in the course of their duties can be disciplined, but only by the House as a whole, in the case of representatives in the U.S. House, and in the case of the Senate as a whole, in the case of U.S. Senators, in proceedings that the legislative body initiates, in accordance with the rules of those respective houses of Congress in a proceeding that is quasi-judicial but has a strong legislative/political component to it. This authority flows from Article I, Section 5, Clause 2 of the United States Constitution which states:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

For example, one of the members of Congress from Colorado, Lauren Boebert, was heavily fined for repeatedly and flagrantly violating U.S. House of Representatives rules including those related to not submitting to metal detector screening when entering the House floor and related to not wearing masks during COVID.

ohwilleke
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This falls to be argued in the course of the criminal prosecution (be that for contempt of Congress for not testfying, or for some other crime that is charged on the basis of your testimony). You have no recourse against the members of Congress involved, other than through the political process: courts aren't allowed to punish members of Congress for their actions within Congress.

An example of this happened in Quinn v. United States, 349 U.S. 155 (1955), a Supreme Court decision from the McCarthy era. Thomas Quinn had been questioned before the House Committee on Un-American Activities, and declined to answer whether he had ever been a member of the Communist Party, indirectly citing the Fifth Amendment. He was subsequently convicted of contempt of Congress. The Supreme Court directed that he should be acquitted, because the committee had not dealt properly with his Fifth Amendment claim. The majority opinion said that in the face of a statement that was ambiguous as to whether a claim was being made, the committee ought to have asked Quinn to clarify, and respected his answer if it was affirmative. Even after Berghuis v. Thompkins, 560 U.S. 370 (2010) regarding how explicit the claim has to be, it would seem that a definite invocation of the privilege should still have the intended effect.

The case demonstrates that in a contempt prosecution, there is a proper avenue by which the court can be asked to consider whether there has been a constitutional violation. That is also the procedure if someone is prosecuted for some other crime on the basis of information revealed in their Congressional testimony - if there is an objection to that being received in evidence, then it can be made to the court. The outcome would depend on the exact circumstances; for example, if I claim the Fifth but then a bit later say "I totally murdered that one guy" then the prosection will argue that I waived my right, I will argue that I didn't, and the judge will make a decision. That is just the same as if I said the same things during a police interrogation.

There is also federal law in 18 USC §§ 6001-6005 regarding immunity from prosecution in the context of Congressional testimony. Briefly, if you are testifying in Congress, then the committee (or the House, or the Senate) can apply to the district court for an order that you have to answer the questions, even if you want to take the Fifth. But,

no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.

A case on a predecessor statute, Adams v. Maryland, 347 U.S. 179 (1954), held that "any criminal case" included prosecutions in a state court. So under this regime, you might be found in contempt for refusing to testify, but you can't be prosecuted on the basis of what you do say. The system was examined in Katsiger v. United States, 406 U.S. 441 (1972), where the court held that it leaves a witness in "substantially the same position as if the witness had claimed the Fifth Amendment privilege", and therefore was consistent with the Constitutional protection.

alexg
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