The typical reaction to anyone invoking the Fifth Amendment under questioning? Where there’s smoke, there’s fire. It’s widely seen as an admittance of culpability (or bad behavior) if not outright guilt. But when multiple former aides to President Biden are choosing “take five” when questioned before Congress about his cognitive competence and use of autopens, that smoke threatens to obscure any glimpse of actual flame.
Maybe that’s the point.
The House Oversight Committee, chaired by GOP Rep. James Comer, has this year sought testimony from more than a dozen former Biden aides into what is really a broad-ranging investigation into Biden’s cognitive state during his presidency. Three of those aides—former Biden Deputy Chief of Staff, Annie Tomasini, former Chief of Staff to First Lady Jill Biden, John Bernal and Biden’s former White House doctor, Kevin O’Connor, who invoked both the Fifth Amendment as well as doctor-patient privilege—have now refused to answer questions from the committee, invoking their Constitutional rights against self-incrimination. The reaction has been hyperbolic.
“It’s apparent they would rather hide key information to protect themselves and Joe Biden than be truthful with the American people about this historic scandal,” Comer stated. Rep. Byron Donalds attacked the use of the Fifth Amendment as “hiding behind the Constitution so that they don’t have to tell the truth to the American people about Joe Biden’s capabilities and mental faculties.” He called it “corruption at the highest level.”
Yes, the aides’ decision naturally raises questions as to whether they have something hide. President Trump echoed this view in 2016 when he criticized his opponent Hilary Clinton’s staff for invoking the Fifth Amendment during the investigation into how she handled potentially classified materials while Secretary of State. “You see the mob takes the Fifth,” said Trump at the time. “If you’re innocent, why are you taking the Fifth Amendment?”
Trump, however, had invoked the Fifth Amendment over a 100 times in a deposition during divorce proceedings with his first wife Ivana, and did so again more than 400 times during the New York State Attorney General’s fraud investigation into his business practices. And, of course, his refusing to testify during the 2024 criminal trial for which he was convicted on 34 counts was also his right under the Fifth Amendment.
But it’s a misconception that the Fifth Amendment only applies only to the guilty. It is, rather, about due process—that no person “shall be compelled in any criminal case to be a witness against himself”—and seeks to prevent the use of torture to elicit confessions. As the U.S. Supreme Court put it, one of the Fifth Amendment’s “basic functions … is to protect innocent men.” (The attorney for one of Biden’s aides cited this precedent in his statement about his client’s testimony.)
And there are clear requirements about when the Fifth Amendment is validly asserted. Beyond the threat of compulsion or torture (while veterans of Congressional hearings may quibble over whether they constitute torture, the law recognizes a Congressional subpoena—or any subpoena —as sufficient here), the person invoking it has to have a reasonable fear of being prosecuted. That fear seems easily justified here in light of Trump’s postings on social media in which he called Biden officials “treasonous thugs” and saying they should suffer “severe” consequences.
Indeed, legal and factual analysis suggests that the Biden aides may be trying to hide or shield themselves—not the truth about Biden’s performance of his duties—from the current Department of Justice’s efforts to punish Trump’s perceived opponents and critics. After all, Trump’s second term is essentially a retribution lap—and revenge and retribution have always been the twin tenets of Trumpism.
Crucially, an increase in Fifth Amendment invocations should raise alarm that Congress might be thwarted in performing its Constitutional oversight duties. Or rather, that Congress is thwarting itself by normalizing such activities—whether Comey’s autopen inquiry or Rep. Jim Jordan’s Select Subcommittee on the Weaponization of the Federal Government. The latter—a exercise at which I actually testified—resulted in an absolute nothing-burger of a final report.
In normal times, using oversight hearings to raise the specter of criminal charges would be frowned upon, given that only the DOJ can bring such action. But with the agency fully controlled by Trump uber-loyalist Pam Bondi, we can expect criminal accusations to be the new normal. More invocations of the Fifth Amendment will follow.
If the GOP majority in Congress genuinely wants answers, it has a time-tested solution to get around the Fifth Amendment: Immunity. Memorably, Congress granted immunity to numerous witnesses to find the truth about the Iran-Contra scandal, and the illegal sales of arms by the Reagan administration. It worked—Congress got answers. (But it also derailed later criminal prosecutions with two of the key figures, Oliver North and John Poindexter, whose convictions were reversed based on judicial findings that evidence against them had been improperly derived from immunized testimony before Congress.)
So if Republicans really think it’s important to know what happened in Biden’s White House, they should put their money where their mouth is and freely grant immunity to his former aides. But maybe they don’t really want that, because they can make more hay—and certainly land more incendiary airtime—by complaining they can’t get answers? Maybe the smoke is a lot more valuable to them than any fire, even if they’d promised to burn down the establishment and build government anew.
