The chairman of a House investigative subcommittee says a new ethics opinion from the D.C. Bar shortchanges the interests Congress has in demanding that a reluctant witness appear.
As The National Law Journal reported today, the D.C. Bar's Legal Ethics Committee recently revisited the question of whether it's proper for congressional lawyers to assist in calling a witness before a committee if the lawyers know the witness will invoke his Fifth Amendment rights. Lawyers on Capitol Hill have in the past faced the threat of bar sanctions for doing so, under the theory that prosecutors are barred from doing something similar in criminal trials. Defense lawyers have long opposed such appearances by witnesses, calling them unfair.
The issue is an important one, given how often Congress wants to hear from a high-profile witness who would prefer not to answer lawmakers’ questions.
U.S. Rep. Cliff Stearns (R-Fla.) says a new opinion from the Legal Ethics Committee “does help to clarify” that Congress may have legitimate reasons to call such witnesses, but that the committee could have done a better job explaining what those reasons are. Stearns is chairman of the House Energy and Commerce Committee’s subcommittee on oversight and investigations, historically one of the most active investigative committees on Capitol Hill.
Stearns, in an e-mailed statement, says a committee may have any of at least three legitimate reasons. “First, witnesses have no right to refuse to testify just to avoid embarrassment or civil liability and the committee has a right to determine if the witness understands that, and thus, if the invocation of the Fifth Amendment is proper.
“Second,” he adds, “the witness might change his or her mind and decide to answer at least some of the questions at a hearing. And finally, Congress has the authority to immunize witnesses and override the criminal liability the Fifth Amendment protects against, and it might not know whether to do so without evaluating the witness’s sincerity or other issues.”