The Fifth Amendment and Late Night Pardons

In recent days, two former Biden Administration officials exercised their Fifth Amendment rights against self-incrimination to dodge answering congressional questions on the issue of the ex-president’s mental competence.

Under current Fifth Amendment law, the unexpressed answers to those questions have to be “Yes. He was incompetent.” No other answer justifies their resort to the Fifth Amendment.

A Congressional Committee has been investigating the Biden Administration’s use of an auto-pen to sign numerous pardons in the last night of Biden’s term. According to House Oversight Committee Chairman James Comer (R. Ky), on Wednesday, former First Lady Jill Biden’s Chief of Staff, Anthony Bernal, invoked his Fifth Amendment rights in order to decline answering whether the ex-President or others ever told him to lie about Biden’s health or, according to Comer, “if any unelected official or family members executed the duties of the president.”

Similarly, Biden’s personal physician, Kevin O’Connor, took the same Fifth Amendment dodge before the committee a week ago.

Of course, there are only two possible answers to those questions, yes or no. But only one of those answers — yes he was asked to lie and/or others executed Biden’s duties — would potentially implicate Bernal or O’Connor.

In other words, only a yes answer provides the basis for a Fifth Amendment plea.

We can thus reasonably conclude that both the former Chief of Staff to Jill Biden and Joe Biden’s personal physician knew well of the ex-Chief Executive’s incapacity while the Administration publicly denied what they, and the rest of us paying attention, already knew.

The obvious implication here is that Bernal and O’Connor do not want to admit Biden’s manifest mental incompetence under oath for fear of personal criminal repercussions.  Any other answer needs no Fifth Amendment protection.

Bernal’s personal attorney tried to spin his client’s refusal with a hopelessly weak defense: “The Committee has sought testimony from Mr. Bernal for nearly two years, without any actual evidence of wrongdoing by Mr. Bernal,” said Jonathon Su, Bernal’s lawyer.

So what?

The committee is investigating Joe Biden and need to have no evidence whatsoever against Bernal or O’Connor to at least ask its questions.

Attorney Su bizarrely continued, “[u]nder these circumstances, it is entirely appropriate and justified for Mr. Bernal to invoke his rights under the Fifth Amendment to the Constitution.”

That is not how the Fifth Amendment works. I hope Bernal did not spend a lot for that incompetent defense. He deserves his money back.

In short, the Fifth Amendment provides that the government may not compel a person to answer questions that would tend to incriminate the speaker in a crime. The amendment is time honored, ensconced in our original Bill of Rights, and comes from Western legal principles long predating the Constitution.

But it has its obvious limits. First, it prohibits only compelled testimony, meaning that a witness may not be forced to testify against himself. Second, the government may not use compelled testimony — or the refusal to testify — against the witness as evidence of guilt.

Fine. In a subsequent prosecution, the government cannot use Bernal’s or O’Connor’s resort to the Fifth Amendment against them. But against Joe Biden is another matter.

The Fifth Amendment does not stop the rest of us from drawing obvious conclusions from Bernal’s or O’Connor’s refusal to testify. “We the People” are free, notwithstanding the Fifth Amendment, to exercise our common sense outside of a formal government proceeding.

And that common sense tells us from their use of the Fifth Amendment what we already knew: Biden was too mentally incompetent to issue these late night pardons. Or to do the rest of the things the Biden Administration did in Joe’s name.

The author is an Orange County Supervisor, founder and past president of the Orange County Federalist Society, and practiced Constitutional law for over thirty years.