The Fifth Amendment in Congressional Investigations, CRS Legal Sidebar, May 26, 2017. [FAS]

“Former National Security Advisor Michael Flynn recently invoked his Fifth Amendment privilege against self- incrimination in response to a subpoena issued by the Senate Select Committee on Intelligence for documents related tothe Committee’s ongoing investigation into possible Russian involvement in the 2016 election. As noted in this previous Sidebar, this is neither the first, nor is it likely to be the last time that a witness in a congressional investigation invokes the Fifth Amendment as justification for not complying with a committee subpoena. As a general matter, witnesses may invoke the Fifth Amendment privilege during a congressional investigation with regard to testimony or documents that are: (1) testimonial (“ relate[s] a factual assertion”); (2) self-incriminating (any disclosures that tends to show guilt or that furnishes any “link in the chain of evidence” needed to prosecute); and (3) compelled (not voluntarily given). Oral testimony given pursuant to a subpoena and in response to committee questioning almost always qualifies as testimonial and compelled. Therefore, the central inquiry is typically whether the responsive testimony would be “incriminating.” The Supreme Court has taken a broad view of what constitutes incriminating testimony, holding that the privilege protects any statement “that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might so be used.” Even a witness who denies any criminal wrongdoing can refuse to answer questions on the basis that he might be “ensnared by ambiguous circumstances.”