Impeachment and the Fifth Amendment

Yes, Karl Rove could plead the Fifth Amendment to avoid testifying at a hearing on Articles of Impeachment. But he couldn’t on those grounds refuse to produce documents.

Responding to my suggestion that the House of Representatives start impeachment proceedings against Karl Rove as a way of forcing his testimony in the face of Bush’s assertion of “executive privilege,” a reader asks:

Wouldn’t that go against the right to not self-incriminate? In criminal trials, the defendant can’t be forced to testify.

That seems to be a compelling point. But let’s look at the texts:

Judgment in Cases of Impeachment shall not extend further than to removal from

Office, and disqualification to hold and enjoy any Office of honor, Trust or

Profit under the United States: but the Party convicted shall nevertheless be

liable and subject to Indictment, Trial, Judgment and Punishment, according to

Law.

[Art. 1, Sec. 3]

… nor shall any person be subject for the same offense

to be twice put in jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself…

[5th Amendment]

So an impeachment specifically isn’t a criminal trial. Otherwise a subsequent prosecution would be barred as double jeopardy.

Because he would be subject to prosecution later, Rove could still claim his Fifth Amendment privilege at a a hearing considering a Bill of Impeachment or at his trial before the Senate. It would be legitimate for Congress to draw the appropriate inference (as it would not be proper in a criminal trial). The public, too, would be free to draw inferences, which might deter Rove from making such a claim.

In any case. the Fifth Amendment is a testimonial privilege: it doesn’t shield anyone from having to provide documents under his control. That makes it much narrower than the supposed “executive privilege.”

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com