The Washington PostDemocracy Dies in Darkness

Pleading the Fifth: A congressional ritual for senior feds in times of scandal

VA senior executive Diana Rubens (center), director of the Philadelphia and Wilmington regional offices, declined to testify Monday before House lawmakers investigating her (AP Photo/Molly Riley)

The decision this week by two senior Veterans Affairs executives to invoke their Fifth Amendment right to remain silent before Congress is the latest case in a long-lived Capitol Hill tradition. Civil servants, who are paid by the public, refuse to testify over alleged misdeeds.

In Monday’s exhibit, Diana Rubens and Kimberly Graves, subpoenaed to appear before the House Veterans’ Affairs Committee to answer allegations that they abused their positions to get plum jobs and perks, told Chairman Jeff Miller (R-Fla.) from the witness table that their attorneys advised them not to talk.

Lawmakers wanted them to shed light on what the agency’s watchdog called a pattern of unjustified, costly moving incentives and transfers. Again and again, they said, “I am invoking my constitutional right not to testify.” After about 40 minutes of this futile back and forth, the chairman excused them.

[VA senior officials used their positions to get plum jobs and perks, watchdog says ]

Underlying the political theater is a tension between the public’s right to know what wrongdoing is unfolding in the federal government and the civil servant’s right to avoid implicating himself. This drama unfolds with almost every government scandal. And in a Congress and White House divided between Democrats and Republicans, it ratchets up.

Jeffrey Neely (who partied in a hot tub at a junket in Las Vegas), Lois Lerner (at the center of the IRS controversy over targeting of conservative groups), John Sepulveda (in trouble for organizing over-the-top VA conferences), Greg Roseman (who awarded a large contract to a company owned by a close friend) and Patrick Cunningham (a central figure in the Justice Department’s Fast and Furious operation) — these Obama administration officials all took the Fifth before Congress too.

[After VA payment scheme is uncovered, top officials admits, ‘We weren’t paying attention to everything we should have’]

The practice raises the question of whether these are brazen bureaucrats who are thwarting the efforts of Congress to hold public servants accountable, or merely victims of partisan politics who are making use of civil service protections that allow them to insulate themselves from questions.

The practice is bipartisan. It dates to the McCarthy era in the early 1950s,  when Republican Sen. Joseph McCarthy and his supporters denounced Americans accused of being communists or communist sympathizers who declined to testify before Congress as “Fifth Amendment communists.”

Remember the politically-motivated firing of U.S. attorneys in the George W. Bush White House? The then-Justice Department White House liaison, Monica Goodling, pled the Fifth before the House Judiciary Committee in 2007.

And so on.

Critics of the practice, and of the employment protections enjoyed by civil servants, note that when it comes to misconduct, government officials are held to different standards than private-sector employees.

“If you’re a shareholder of a company and your employee does something wrong, you can take action against them and there’s no pleading the Fifth,” said Chris Edwards of the libertarian Cato Institute, a critic of the size and scope of government.

“In government, you’ll see misbehavior at agencies like the VA, and Congress can’t get to the bottom of what happened because the officials won’t talk,” he said. “It’s infuriating.”

But attorneys who represent federal workers and senior executives in particular, are adamant that if a crime likely occurred, or even administrative misconduct that could result in the employee’s firing or discipline, the official would be crazy to talk unless they are granted immunity. And that’s rare.

“There’s a perception that when you take the Fifth, you’re guilty,” said William Cowden, a former assistant United States Attorney now with   The Federal Practice Group a Washington-based employment law firm.

“If you do that as a politician, you’re dead,” Cowden said. “But the difference between a politician and a bureaucrat is they’re not facing an electorate. If you start answering all those questions, it’s going to open you up to self incrimination.”

He said there is “not a relevant question” an official in Rubens’ or Graves’ position could answer “without exposing themselves to risk.” He also said that inspectors general make mistakes in their investigations.

The VA official who did testify before lawmakers Monday told them the agency is taking disciplinary action against them, but declined to say what it is. The women also face possible criminal prosecution.

The bottom line for the public is how to the bottom of what happened when things go wrong in the federal government. Or, as Rep. Corrine Brown (D-Fla.) the top Democrat on the House veterans panel, put it at Monday’s hearing, “At the end of the day, we simply must find answers and make sure the veterans come first.”

Read more:

Federal official who famously partied in a hot tub on taxpayers’ dime is sent to prison 

House Republicans, in last-ditch effort, move to impeach IRS commissioner over targeting of conservative groups

Goodling says she “crossed the line”