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Attorney William Cowden Weighs in on "Pleading the Fifth"

Written by: Federal Practice Group
Written by: Federal Practice Group

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Civil servants have a longstanding practice of “pleading the fifth” when asked to testify over alleged misconduct. This certainly was the case this week, when Veterans Affairs senior officials Kimberly Graves and Diana Rubens were subpoenaed to appear before the House Veterans’ Affairs Committee to answer to accusations that they abused their positions to gain plum jobs and perks. Neither official answered any of the questions posed to them by lawmakers, choosing instead to invoke their Fifth Amendment right not to testify. The two women face criminal prosecution and the VA will be taking unspecified disciplinary action against them.

This is just one of many similar scenarios that highlight the political tension between a person’s right not to self-incriminate and the public’s right to know what misconduct is occurring in the federal government. When civil servants exercise their right to remain silent, are they thwarting Congress’s efforts to hold public servants accountable, or are they insulating themselves from questions as a form of protection against the worst of partisan politics? Whatever the reason, critics believe that public servants should be held to a higher standard than employees of the private sector when it comes to misconduct.

According to The Federal Practice Group’s very own William R. Cowden, there is a perception that a person who exercises their Fifth Amendment rights is guilty, saying “if you do that as a politician, you’re dead… but the difference between a politician and a bureaucrat is they’re not facing an electorate. If you start answering all those questions, it’s going to open you up to self-incrimination.”

William also explains that there is no relevant question that Graves, Rubens, or any other politician in their position could answer without putting themselves at risk. He notes that Inspectors General and other law enforcement investigators make mistakes, which is why it makes sense to test accusations in criminal trials under a system designed to be fair. Political and media trials lack similar procedural and evidentiary rules and, consequently, present considerable risks regardless of a witness’s culpability.

To view the original article, “Pleading the Fifth: A congressional ritual for senior feds in times of scandal,” please click here.

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