By Matt Rooney | The Save Jersey Blog
The 5th Amendment is among our most important add-ons to the U.S. Constitution, Save Jerseyans, despite the fact that most of you will thankfully never need to use it.
Unless, of course, you’re planning on applying for an opening at the PANYNJ? I hear they’re hiring…
But in all seriousness, reflect on the language of the Bill of Rights most mysterious provision for moment:
No person shall be held to answer for a capital, or otherwise 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. [Emphasis added.]
There’s a lot in there, but your right to avoid self-incrimination is pretty clear and, for the founding generation, self-evidently critical to ensuring a truly just legal system. Thursday’s Bridgegate hearing in Trenton drove home that very point…
Asm. John Wisniewski’s Transportation Committee showed more concern for scoring political points than our fundamental human rights on Thursday afternoon when they voted to hold former port authority official David Wildstein in contempt, a misdemeanor offense in New Jersey, after Wildstein relied on his 5th Amendment right to abstain from answering committee Bridgegate questions.
Legislative Democrats will now file the contempt charges with state law enforcement officials.
There are a few narrow exceptions to the 5th Amendment right’s applicability in court cases. You could waive it (sometime accidentally). A prosecutor could obtain an immunity order. The desired testimony might not incriminate the testifying party as pre-determined by a court ruling. The constitutional landscape is much hazier, however, in legislative proceedings. New Jersey has a statute on the books explaining what “contempt” looks like in the legislative context:
52:13-5. What constitutes contempt; report thereof to legislature
Whenever, in any investigation or inquiry by any committee constituted by joint resolution of the legislature to enter upon or make such investigation or inquiry, any witness summoned or subpoenaed to appear before such committee to testify or to produce books, documents, papers or records, shall willfully neglect or refuse to appear in obedience to the summons or subpoena, or shall willfully neglect or refuse to produce any books, documents, papers or records commanded to be produced by the summons or subpoena, or shall refuse to be sworn or affirmed, or shall refuse to answer any question put to him which the committee shall decide to be proper and pertinent to such investigation or inquiry, or shall in any other way contemn the authority or privileges of the legislature, and the facts alleged to constitute any such contempt shall have been reported by any such committee to the legislature, the alleged contemner shall be tried, and the alleged contempt determined, as hereinafter provided. [Emphasis added.]
Having failed to quash the subpoena earlier Thursday, Wildstein and his attorney were left with no recourse but to show up to the committee hearing.
How could he be expected to testify without a risk of self-incrimination? Particularly when New Jersey’s U.S. Attorney opened a Bridgegate investigatory file on the same day?
Chairman Wiz thinks the following section of the New Jersey State Code of Fair Procedure definitely settles the matter:
52:13-3. Compensation of witnesses; swearing witnesses; perjury; immunity; refusal to answer or be sworn
Witnesses summoned to appear before any committee authorized by this article or any other law to conduct an investigation or inquiry shall be entitled to receive the same fees and mileage as persons summoned to testify in the courts of the state. All such witnesses may be sworn by any member of the committee conducting the investigation or inquiry; and all witnesses sworn before any such committee shall answer truly all questions put to them which the committee shall decide to be proper and pertinent to the investigation or inquiry; and any witness so sworn who shall swear falsely shall be guilty of perjury. No such witness shall be excused from answering any such questions on the ground that to answer the same might or would incriminate him; but no answers made by any witness to any such questions shall be used or admitted in evidence in any proceeding against such witness, except in a criminal prosecution against the witness for perjury in respect to his answers to such questions. [Emphasis added.]Any witness who refuses to answer any questions decided by the committee to be proper and pertinent shall be guilty of a misdemeanor; and any witness who, having been summoned to appear before any such committee, fails to appear in obedience to the summons or, appearing, refuses to be sworn shall be guilty of a misdemeanor.
Okay, Mr. Chairman, but law school 101 is that constitution > statute, and when it comes to conflicts between the U.S. Constitution and state law, the Supremacy Clause trumps all.
“I don’t believe that the legislative immunity would sufficiently protect Mr. Wildstein,” said Wildstein’s attorney to a visibly irritated committee. “He has the right under both the federal and state constitutions to not give answers that could be used by a prosecutor, were they to charge him, even if they were to charge him wrongly. So if his answer could furnish an element of proof in a prosecutor’s case, then a person in the position of Mr. Wildstein does not have an obligation to answer.”
I’m sorry that the Constitution is an inconvenience to their big dog-and-pony-show moment in the national limelight but that’s also not my problem. The rule of law doesn’t take a backseat to political grandstanding; Wally Edge and counsel need to push this one and see if it holds up in court. It could be the artist formally known as Wally Edge’s last great contribution to New Jersey politics.
Oh come on.. the committee of DEMOCRATS whose motto is “We don’t need no stinkin Constitution”
I do have to wonder how this will dovetail with Wildstein’s attorney basically asking Wisniewski to intervene with the US Attorney on his client’s behalf, suggesting he would be willing to talk if he had immunity.