Jeffrey Clark, Like Other Key Witnesses, Pled the Fifth Before the January 6 Committee. Now What?

Photo: Tom Williams/CQ Roll Call

Former Justice Department Official Jeffrey Clark, who was at the center of a White House plot to overturn the 2020 election, finally appeared before the January 6 Committee after initially refusing on executive privilege grounds (for which the Committee recommended a criminal contempt referral) then citing illness to delay his testimony date twice. After all that, Clark testified for 100 minutes but invoked the Fifth Amendment privilege against self-incrimination some 100 times, rendering the bulk of his “appearance” rather useless for information gathering purposes.

Rep. Zoe Lofgren (D-CA), a member of the January 6 Committee, told CNN that Clark’s deposition was “very disappointing.” As former U.S. Attorney Barb McQuade explained to Politico, “It is a concerning development.” She continued, “I think we are seeing more use of the Fifth Amendment privilege because it is an unqualified privilege. Executive privilege must yield to a greater national interest. Attorney-client privilege has an exception for communications made in the perpetration of a crime or fraud. The Fifth Amendment privilege does not have those exceptions.”

Clark joins others who have now refused to testify based on their Fifth Amendment right, including conspiracy pusher Alex Jones (“almost 100 times”), attorney John Eastman, author of the “coup memo” (146 times), and political trickster and convicted-but-pardoned Trump presidential confidant Roger Stone (to every question asked). 

So what options do investigators have, now that so many key witnesses have stonewalled? Here are a few things to keep in mind and a brief overview of how things look as the Committee prepares for public hearings this spring.

The Committee Probably Does Not Need Their Testimony To Make Its Case to the Public and To Make Criminal Referrals

While the stonewalling defendants, from Bannon to Meadows to Clark, garner big headlines, the behind-the-scenes testimony and cooperation continues. The Committee has successfully interviewed hundreds of witnesses, including many within the White House who were privy to the same memos, communications and meetings as these witnesses. For example, while Clark has refused to answer questions about the memos he authored, his former boss Jeffrey Rosen and his colleague Richard Donoghue have both spoken to the Committee. While Meadows has stonewalled, his top aide Ben Williamson just spoke to the Committee for over six hours. 

“For every one who may not want to talk to us, there are dozens [who do] and a lot of connections we continue to make in the investigation,” said Committee member Pete Aguilar (D-CA).

It’s important to remember that even in criminal trials, the actual defendants rarely testify in court, usually on the advice of their lawyers. Criminals are convicted based on direct evidence and circumstantial evidence—both of which can include the testimony of others—rather than their own words in court.

The Committee May Be Setting These Witnesses Up For Public Hearings

It is one thing to plead the Fifth behind closed doors in a Congressional hearing, and quite another to do so before the cameras. While a court of law is to draw no adverse inference from a witness’s decision to plead the Fifth (and completely innocent people often correctly preserve their right to silence), in the court of public opinion pleading the Fifth can read quite poorly. 

When public hearings begin later this year, the Committee might elect to call back some of these witnesses in order to highlight the most telling moments of their prior refusals to testify. The public likely would conclude that they have something nefarious to hide.

In so doing, the former president’s own words will come back often to haunt them. “If you’re innocent, why are you taking the Fifth Amendment,” Trump said in 2016, complaining about aides to Hillary Clinton, who faced relentless inquiries over the use of a private email service (something Trump’s cronies do regularly with barely any comment from the press). “You see the mob takes the Fifth,” Trump said. “If you’re innocent, why are you taking the Fifth Amendment?”

The Committee Could Grant “Use Immunity” To Certain Witnesses

A more controversial possibility was floated by Rep. Lofgren in an interview after Clark’s uncooperative testimony. “One of the options the committee needs to look at is whether we provide use immunity to Mr. Clark,” she said. “We haven’t made that decision but we’re sorting through those issues right now to see whether that is an appropriate step to take,” she added.

Legal experts sat up at this news. Immunity was granted during the Watergate hearings and in the Iran-Contra hearings with varying success. It essentially means a deal by which investigators agree not to use any of the testimony given as part of a later criminal prosecution. The risk is that, while valuable information can be obtained, criminal co-conspirators might escape accountability. This occurred in the case of Oliver North, whose conviction for trying to cover up the Iran-Contra arms scandal was overturned on appeal because of a prior immunity grant from Congress.

The key here would be whether the Justice Department could have learned about the witnesses’s criminal activity some other way. Clark, for example, could still be prosecuted later if the evidence for his conviction was already in the hands of investigators and his testimony was used primarily to implicate another defendant, such as the former president. 

But the risks of derailing an ongoing investigation run high here. By statute, use immunity lies within the sole discretion of Congress to grant, and the Attorney General must honor the decision. In Clark’s case, the Justice Department, whose Inspector General is still actively investigating Clark’s role in the plot to overturn the election, might still be considering charges against Clark and others, and Congress could seriously trip that up in its quest to obtain information should it offer use immunity.

Indeed, this might be the very game Rep. Lofgren and the Committee are playing. By dangling the prospect of use immunity for witnesses like Clark, this could force the Justice Department to tip its hand to the Committee as to the state of its investigations into higher-ups within the White House itself. To date, the status of those investigations has been kept completely under wraps and has displayed no notable public progress, much to the frustration of Committee members and other critics of the prior administration. If the Justice Department were to signal to the Committee, even privately, that they should not move forward with use immunity for Clark or others, that would be a strong signal that they still intend to prosecute them.