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Invoking the Fifth Amendment Before Congress

Dr. Nick Oberheiden
Attorney Nick Oberheiden
Fifth Amendment Before Congress
Team Leadenvelope iconContact Nick

Invoking the right against self-incrimination or, as it is colloquially known, “taking or pleading the Fifth” is one of the most important and recognized constitutional rights of individuals.

During a criminal investigation and court proceeding, you cannot be compelled to testify against yourself and implicate yourself in a crime.

But what about a congressional investigation?

A congressional committee issued you a subpoena. And you complied. You got all the documentation they asked for and soon you will be before the committee to testify. You did everything right.

Except you wonder: what happens if the answer to a question would expose you to criminal liability?

Must you answer every question?

The rule is that you must every question the committee asks you, otherwise you can be held in contempt of Congress. However, the committee cannot demand that you answer a question if, in answering, you will incriminate yourself.

You still have your Fifth Amendment right when you testify before Congress.

If you think answering the committee’s questions could expose you to a criminal investigation, you need to contact a defense lawyer immediately.

It’s not just your reputation and business on the line anymore – it’s your freedom. You need to retain a defense team that can assess your case; determine if invoking your Fifth Amendment is warranted; and (if so) how big the scope of the invocation needs to be.

At Oberheiden P.C., our defense attorneys have an extensive background in governmental inquiries and criminal law. We will not allow your constitutional rights to be threatened! Contact us today!

Overview of Right Against Self Incrimination

The Supreme Court has held that Congress’s power is limited by the Bill of Rights, which includes the right against self-incrimination.

The Fifth Amendment of the United States Constitution states:

“No person . . . shall be compelled in any criminal case to be a witness against himself…”. 

Taken from English common law and adopted into the U.S. Constitution, this right protects you from incriminating yourself in a crime. You have the legal right to refuse to answer any question if the answer is something that could implicate you in a crime.

This right stems from the notion that no one should be forced by the government to incriminate himself or herself.

Thus, when you testify before Congress, if you feel that a certain line of questioning will expose you to a criminal investigation, you must invoke your right. The standard is that you must reasonably fear that answering the question would provide evidence that could be used in a criminal proceeding against you, or lead to evidence that could be used against you.

Congress is bound to accept that invocation.

Invoking Your Right Against Self-Incrimination Before Congress

Invoking your Fifth Amendment right does not require any special words. You just have to invoke it clearly so that the committee understands you are invoking the right. If your invocation is unclear, then the committee can ask for clarification.

Generally, the right against self-incrimination only protects you from being compelled to testify on a matter that could implicate you in a crime. It only protects a person from testifying and accusing themselves. It cannot be invoked by an individual on behalf of a corporation, partnership, or other artificial organization.

A subpoena for documents generally is not grounds to invoke your right against self-incrimination. The reason is that there is no compulsion in a subpoena asking for the preparation of documents as the preparation is voluntary. Further, production is not equated with testimony.

However, the Supreme Court has recognized that while the production of documents is not testimonial, the act of production might be. Therefore, it is fact-intensive whether you can invoke your right against self-incrimination when your subpoena calls document production.

Your defense lawyer will understand the difference and will be able to guard your rights.


Congress may agree to grant you immunity in exchange for your testimony. Thus, you will answer the questions that would otherwise be incriminating. However, you have “immunity” from prosecution. This is common when you are not the target of the investigation; rather, you are just a witness in the investigation.

But be wary. Congress cannot guarantee that you won’t be prosecuted. Congress does not have the power to protect you from prosecution.

Only a U.S. attorney from the Department of Justice can agree to immunity in exchange for your testimony. This is based on the principle of the separation of powers.

Prosecution is a power of the executive branch. Further, U.S. attorneys have “prosecutorial discretion” in which the decision to prosecute or not prosecute is a highly discretionary power only they have. For Congress to offer immunity would be to intrude on the powers of the executive branch and thereby violate the separation of powers.

Thus, if you and your attorney decide that giving your statement in exchange for immunity is the best option, a deal will not be made without including the Department of Justice.

If you are given immunity, it is best to discuss in detail what the immunity covers and what it does not cover. You can still be prosecuted for any statement you give to Congress in which you incriminate yourself and that statement is not within the scope of immunity agreed to with the Department of Justice.

Waiver of the Fifth Amendment

You can waive your Fifth Amendment right as well – so be careful. There are three ways you can waive your right against self-incrimination:

1. Disclaim: If you specifically denounce your right against self-incrimination, then it is waived. Unless it can be proven that the disclamation was coerced, you would have successfully waived your right.

2. Decline: If you decline to invoke your right against Self-Incrimination, it is deemed waived. Thus, if the line of questioning turns so that your answers could subject you to a criminal proceeding, if you continue to answer, then in declining to invoke your right, you waived it.

3. Continue: If you invoke your right against self-incrimination, but later start answering questions that can incriminate you, then you will have been deemed to have waived it.

Contact Oberheiden, P.C. Now for a Free Consultation!

If you think that your testimony before Congress will implicate you in a crime, then you need a defense attorney. At Oberheiden, P.C. we have experienced constitutional and government lawyers who can analyze your case and make sure that your legal rights are protected.

Remember, we’re not just talking about an investigation anymore – we are talking about your liberty. Get in touch with our defense team now and let us start helping you!

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