By Donald Scarinci | March 12th, 2014 - 9:25am
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Asserting the right to remain silent does not imply guilt.

The courts will soon consider whether key witnesses in “Bridgegate,” including Bridget Anne Kelly and William Stepien were correct to assert their Fifth Amendment rights in response to subpoenas from the legislative committee investigating the George Washington Bridge lane closure.

 Everyone thinks that everyone else understands how closing lanes on the George Washington Bridge could be criminal.  The fact is that few people understand it including those who did it.  When someone is investigated for allegedly committing a crime they don’t understand, asserting the Fifth Amendment privilege is the only intelligent thing to do.

The U.S. Constitution sets forth the Fifth Amendment right against self-incrimination. It states simply: “[No person]…shall be compelled in any criminal case to be a witness against himself…” The founding fathers generally contemplated more simple crimes like theft or murder.  Complex conceptual crimes like, “theft of honest services,” or “RICO conspiracy,” did not exist in 1787. 

The Fifth Amendment typically arises in the course of a criminal trial. In essence, defendants cannot be forced to testify against their will and juries cannot infer that they are guilty based on their unwillingness to take the stand. Witnesses can also assert their right against self-incrimination in civil and administrative proceedings if their testimony might later subject them to criminal charges.

In this case, the scope of the legislative investigation committee is rather broad and it is not clear exactly what “crime” they are investigating.  If there is an ongoing investigation by the U.S. Attorney's office involving some unspecifiable crime, it would seem like pleading the Fifth Amendment might be the only thing a witness could do until the “crime” being investigated becomes more focused and more tangible.  At that point a more informed decision about testifying could be made.

The “gate” in “Bridgegate” is the opening that has brought many other questionable activities to light.  The criminal nature of some of these activities appear much more clear than closing lanes on a bridge.  If the “Bridgegate” players provide information that implicates them in any of these possible crimes, then they would have no choice but to assert the Fifth at this stage in the investigations.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

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