A second key witness is pleading the fifth – and the January 6th Committee is going to have a field day with it
Earlier this week we wrote that we hoped January 6th witnesses would begin pleading the fifth in response to questions about what they and Donald Trump were plotting, because that would hand the January 6th Committee a winning narrative. While the law doesn’t see pleading the fifth as an indicator of guilt, the court of public opinion certainly does.
Sure enough, former Trump DOJ official Jeffrey Clark has confirmed that he intends to plead the fifth during his followup testimony this upcoming weekend. Now, Trump lawyer John Eastman, who reportedly wrote a memo for Trump about how to illegally overthrow the 2020 election results, has informed the committee that he’s also invoking the Fifth Amendment. Make no mistake, this means it’s Christmas Day for the January 6th Committee. Why?
For one thing, it means that witnesses are already giving up on trying to use executive privilege to shield themselves. That strategy got Steve Bannon indicted, and it nearly got Mark Meadows indicted before he started cooperating at the last minute. The public interprets executive privilege as “I don’t have to answer this question because the government demands reasonable secrecy to function.” But correctly or not, the public interprets pleading the fifth as “I’m afraid to answer this question because I committed crimes.”
Moreover, pleading the fifth is not a magic wand. Each time a witness pleads the fifth in response to a specific question, the committee can ask the DOJ to criminally investigate that specific matter and determine why the witness is invoking the Fifth Amendment. And if the committee concludes that a witness invoked the Fifth Amendment too broadly in response to questions that could not reasonably have incriminated the witness, the committee can still refer that person to the DOJ for criminal contempt.
But for now, this is about messaging. With the January 6th Committee working its way through closed door hearings now and gearing up for public hearings after the holidays, it now gets to begin those public hearings with the convincing argument that multiple top Trump people have already pleaded the fifth in response to the things they were plotting with Trump. Then it gets to have its cooperating witnesses publicly testify about what Trump was in fact plotting. This is already turning into a bonanza – and more witnesses will surely cave and begin cooperating in the coming weeks.
