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Related: About this forumJeffrey Clark Pleads the 5th: What are the Options Now for the Jan. 6 Committee and for the DOJ - GK
Former high Department of Justice official Jeffrey Clark appeared before the House select committee investigating the January 6 attack on the US Capitol and invoked his 5th Amendment right against self-incrimination more than 100 times.
This video reviews the options available to the Jan. 6 committee, including the possibility of granting Clark immunity, in deciding what to do with Clark now that he has pled the 5th and refused to testify.
LetMyPeopleVote
(145,554 posts)Disbarment proceedings are civil proceedings and so taking the 5th can be considered
https://www.litigationandtrial.com/2013/04/articles/attorney/pleading-the-fifth-adverse-inferences/#:~:text=Thus%2C%20under%20federal%20law%2C%20a%20bar%20association%20can,who%20asserts%20a%20privilege%20and%20refuses%20to%20testify.
The Fifth Amendment says that No person. . . shall be compelled in any criminal case to be a witness against himself. As the Supreme Court has long held, The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. Hoffman v. United States, 341 U.S. 479, 486-487 (1951). There are rare circumstances in which a judge can deny the privilege and then compel the testimony, but thats highly unusual. Once you assert it, your refusal to testify cannot be used against you in criminal proceedings......
One interesting point of particular relevance to Prenda Law: As Ken notes in his post summarizing the available sanctions, when a judge notices misconduct in their court, one tool they have available is the ability to refer matters to the attorneys state bar association. Can the silence be used against them in a disciplinary proceeding? Well, theres a case on that in the First Circuit, involving an attorney who fraudulently concealed property during a bankruptcy, then asserted her right against self-incrimination: While refusal to waive the Fifth Amendment might increase the risk that she would be disbarred, disbarment would not result automatically and without more. Hence, she was not threatened with a penalty within the meaning of [Garrity v. New Jersey, 385 U.S. 493 (1967)] for invoking her Fifth Amendment privilege.
Thus, under federal law, a bar association can use the assertion of the Fifth Amendment against an attorney in a disciplinary action, so long as disbarment isnt automatic, but some state laws preclude their state courts from drawing negative inferences against a party who asserts a privilege and refuses to testify. As two corporate defense lawyers at Gibson Dunn noted back in 2010, several states have statutes or rules of evidence that forbid courts from drawing adverse inferences after a party asserts a testimonial privilege. See, e.g., Alaska R. Evid. 512(c); Ark. R. Evid. 512; Cal. Evid. Code § 913(a); Del. R. Evid. 512; Haw. Rev. Stat. § 626-1, R. 513; Idaho R. Evid. 512; Ky. R. Evid. 511; N.D. R. Evid. 512; Nev. Rev. Stat. § 27-513; Nev. Rev. Stat 49.405; N.J. R. Evid. 532; N.M. R. Evid. 11-513; Okla. Stat. Ann. §2513; Or. Rev. Stat. § 40.290; Vt. R. Evid. 512. In those states, the court has to tell the jury to not use the silence against