How Many Ways Are There to Plead the Fifth?

 The January 6 Committee has released its first 34 transcripts, consisting mostly of various witnesses taking the Fifth.  By way of reminder, four witnesses -- Steve Bannon, Mark Meadows, Pete Navarro and Dan Scavino refused to testify altogether and were referred to the Department of Justice for prosecution for contempt.  The DOJ decided to prosecute only Bannon and Navarro.  Meadows apparently cooperated enough to avoid contempt proceedings, and Scavino (presumably) was not important enough to go after.

During the hearing, committee members mentioned that over 30 witnesses appeared and took the Fifth, as is their right. The hearings played excerpts from some of the most prominent witnesses to take the Fifth -- John Eastman (the lawyer who suggested having the Vice President choose which electors to qualify), Jeffrey Clark (the DOJ official who wanted to endorse claims that the election was corrupt), Michael Flynn and Roger Stone. It seemed a safe assumption that many of the others who took the fifth were less well known.  The release of transcripts reveals this to be true.

Many people have expressed outrage at the obscure and innocuous questions that some witnesses refused to answer.  (Roger Stone would not give his age or place of residence).  Others offered in the witnesses' defense that the Fifth Amendment is all or nothing -- one must either answer all questions or none.  The transcripts do not bear that out.  Some witnesses were actually quite cooperative and others only invoked the Fifth for specific subjects. Much to my surprise, these included Stewart Rhodes, founder and leader of the Oath Keeper, testifying from jail and later convicted seditious conspiracy.  Enrique (Henry) Tarrio, chairman of the Proud Boys, was also surprisingly cooperative despite excellent reasons not to be.*  Both men gave extensive details on their organizations that other members might see as betrayal.

Other witnesses, by contrast, gave general background information but shut down when the conversation moved to particulars.  Some (including Roger Stone) refused to answer beyond just acknowledging the subpoena they received.  Witnesses Phillip Luelsdorff and Robert Patrick Lewis, rather to the consternation of the committee, refused to even acknowledge the subpoena they received.  (Both men, it should be noted, belonged to the same organization and had the same lawyer, Leslie McAdoo Gordon).  

Also significant -- you could get some idea how important the committee thought a witness was by how many members attended the deposition.  For an an unimportant witness, only one committee member would attend, or sometimes no committee members would attend and staffers would conduct the deposition. More important witnesses rated more committee members.  Jeffrey Clark tipped the scales with all nine members present for his first deposition.  (This is the only deposition of the 34 released that Chairman Bennie Thompson attended).  Six members attended the second deposition.  Clark appears to have been the only DOJ employee willing to use the Department to overturn the election result, which does, indeed, make him important. Five committee members attended the deposition of Roger Stone.  Here again, if there was a link between the corridors of power and the insurrectionists in the street, Roger Stone is the most likely suspect, so he was, indeed, important.  John Eastman scored four committee members, as did Julie Fancelli, a donor and rally organizer who I must admit to not having heard of. Alex Jones scored three committee members, as did Jenna Ellis, Trump's election lawyer.  Michael Flynn rated a mere two.  (Sounds like an insult).

But above all, I must admit to a certain childish fascination with how many different wordings the witnesses found to invoke their Fifth Amendment rights.  I began to be interested in that trivial subject during the hearings after noticing that Eastman said, "Fifth," while Flynn said, "The Fifth," and Roger Stone said, "On the advice of counsel, I will assert my Fifth Amendment right to respectfully decline to answer your question."  The depositions released gave a wealth of other wordings. Usually the witness invoked the Fifth, but sometimes the lawyer objected on behalf of the witness.  Often the witness or the witness's lawyer gave an extended invocation of the Fifth Amendment and either offered an abbreviation or was given an abbreviation by the committee. Media members usually invoked the First Amendment as well as the Fifth.  Leslie Gordon, on behalf of her clients, also claimed a rules violation.

Consider, then, the extraordinary array of wordings witnesses and their lawyers chose to say the same thing.

Kathy Berden, Michigan fake elector, "The Fifth, please."

Alexander Bruzewitz, CEO of X Strategies, LLC, "On the advice of counsel, I invoke the Fifth Amendment."

Patrick Casey Live stream and paid content. His lawyer said on his behalf, "Same objections, First and Fifth Amendments."

Dion Cini, Proud Boy, "I plead the Fifth."

Jeffrey Clark, "Fifth." 

James DeGraffenreid, Nevada Republican Party official.  Extended speech on the Fifth Amendment, followed by, "On the advice of counsel, I assert the prior privilege."

Enrique de La Torre, associate of Roger Stone, "I assert my Fifth Amendment right."

John Eastman, "Fifth." 

Jenna Ellis, "Pursuant to the advice of counsel, I will invoke my constitutionally protected right to assert the Fifth Amendment." 

Kimberly Fletcher, founder and president of Moms for America, "I decline to answer pursuant to the rights afforded me under the First, Fourth, and Fifth Amendments."

Michael Flynn, "The Fifth." 

Nick Fuentes, racist and rally speaker, "Upon the advice of counsel and in reliance upon the Constitution of the United States, I most respectfully refuse to to answer that question on the grounds that it might tend to incriminate me."  (Later just, "Fifth Amendment.:")

Julie Fancelli, donor, protest organizer, "I invoke."  .

Bianca Gracia, founder of Latinos for Trump, "I rely on my Fifth Amendment privilege."

Alex Jones, "On advice of counsel, I'm asserting my Fifth Amendment right to remain silent." 

Charlie Kirk, leader of Turning Point USA, "On the advice of counsel I'm invoking my Fifth Amendment right not to testify and decline to answer that question." (Later, "I'm invoking my Fifth Amendment right.")

Antonio LaMotta, member, Veterans for Trump, "I invoke the Fifth Amendment."

Phillip Luelsdorff and Robert Patrick Lewis, member, First Amendment Praetorians, both represented by Leslie Gordon, "Rules, First, and Fifth."  

Joshua Macias, member, Veteran for Trump, "I invoke the Fifth, sir."

John Matze, founder and CEO of Parler, "Same objection; Fifth Amendment."  (Spoken by his lawyer, Brian Kelly).

Michael McDonald, Chairman of the Nevada Republican Party, "Based on the advice of my attorney, I'll be invoking my Fifth Amendment privilege."

Mayra Rodriguez, fake elector from Michigan, "I take my Fifth Amendment right to remain silent."

Mike Roman, official with the Trump campaign, "The Fifth."

Roger Stone, no stock phrase, but something similar to, "Once again, on the advice of counsel, I will assert my Fifth Amendment right to respectfully decline to answer your question."  Always used full sentences and not just one or two words. 

James Philip Waldron, preparer and presenter of Power Point slide on election fraud, gave one explanation of his invocation of the Fifth and then "Same reply."

Kelli Ward, chair of the Arizona Republican Party, "I rely on my Fifth Amendment privilege." (Like Roger Stone, she would not even give background information).

Garrett Ziegler, aide to Peter Navarro, "I invoke my right to silence," or "I invoke my right to silence under the Fifth Amendment."

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*Tarrio was arrested on unrelated charged slightly before January 6, 2021 and took no part in the insurrection, but he as later charged with conspiracy.