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After exchanges with majority and minority committee staff and reading the judicial opinions they cite, I have concluded that the committee majority relied primarily on decisions involving defendants in criminal and civil trials who effectively waive their Fifth Amendment rights by voluntarily taking the witness stand.
Witnesses, by contrast, compelled by subpoena to testify involuntarily, have sometimes answered general questions or made brief statements professing their innocence before taking the Fifth. The Supreme Court has held that such utterances do not constitute a waiver so long as incriminating facts have not been broached: “Waiver of constitutional rights . . . is not lightly to be inferred.”
The committee majority’s rush to judgment before weighing arguments on both sides is an unsettling omen. If the inquiry devolves into a “just get the witness” quest and away from a “just get the facts” focus, it will be its own undoing. When a circus ringmaster directs you to the sideshows, you know the center ring will either remain empty or might as well be.
Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.