Pleading The Fifth: Refuge of Scoundrels or Protection From Government Overreach?

By on November 8, 2015 in Current Events with 122 Comments

Pledging oath in court on a bible

Fifth Amendment to the Constitution of the United States of America

No person shall be held to answer for a capital, or other- wise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Civil servants who refuse to answer questions when called to testify before the House of Representatives or the Senate are not exercising civil service protections. They are exercising a Constitutional right guaranteed to everyone.

In many respects a congressional hearing is a far worse place to be than a court of law. In court, defendants are entitled to representation. Their attorney can object to inappropriate questions that do not adhere to strict standards. They can cross examine witnesses.

Congressional hearings are much different. We have all seen hearings where the intent is to score political points.

The Cato Institute argument that companies can take action without their employees pleading the Fifth is absurd. A commercial entity is not the federal government. It does not have subpoena power. It cannot put you in jail. It cannot fine you. It doesn’t put you on television while it is questioning you.

A more appropriate example is what happens when people who are not employees of the federal government are called to testify. Time and time again, we see people who believe they are targets asserting their Fifth amendment right by refusing to “be compelled in any criminal case to be a witness against himself.” 

The Bill of Rights guarantees that individual rights trump political interests. Much like the First amendment guarantees of freedom of speech, religion, the press, assembly and ability to petition the government, and the Second amendment right to keep and bear arms, the Fifth amendment protects the people from government overreach and coercion.

Federal employees have the same Constitutional rights as everyone else. In fact, unlike people who do not work for the government, federal workers and members of our armed forces have sworn an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic….”

We should not pick and choose the parts of the Constitution we like and try to ignore the rest. We should honor the service of our Veterans and ensure they receive the benefits we promised.

Congress should exercise its Constitutional obligation to provide oversight to the Executive branch. They have the right to conduct investigations, subpoena documents and compel testimony, as long as it does not violate the Constitutional rights of federal workers or anyone else. Doing so undermines the integrity of the government and places everyone at risk.

This column was originally published on Jeff Neal's blog,, and has been reposted here with permission from the author. Visit to read more of Jeff's articles regarding federal human resources and other current events along with his insights on reforming the HR system.

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About the Author

Jeff Neal is a senior vice president for ICF International and founder of the blog, He formerly served in the Obama Administration as Chief Human Capital Officer for the Department of Homeland Security and Chief Human Resources Officer for the Defense Logistics Agency. Jeff is also a Fellow at the National Academy of Public Administration and a Partnership for Public Service SAGE.