Dick Cheney and the Fifth Amendment

Is the former vice president of the United States preparing to plead the Fifth Amendment if prosecutor John Durham tries to ask him questions about CIA interrogations of terror suspects?

That's what it sounded like today on Fox News Sunday.

"Former Vice President Dick Cheney said he might refuse to speak with a prosecutor investigating suspected CIA prisoner abuses, a probe he branded as political and bad for national security," Reuters reported.

"It will depend on the circumstances and what I think their activities are really involved in," Mr. Cheney said, when asked whether he would talk to Mr. Durham if the prosecutor sought him out for questioning.

That's an odd answer.

However ill-advised or politically motivated an investigation might be, it's not usually up to the witnesses whether they will answer questions.

If the prosecutor subpoenas Mr. Cheney, is there some way he could avoid testifying?

Could he claim executive privilege?

Not likely. He's not the president now and he wasn't the president then, and in any case there's no such thing as executive privilege, not if anyone cares to get tough on the subject. (See "President Bush's unicorn" and legal historian Raoul Berger's 1974 book, Executive Privilege: A Constitutional Myth. )

Could he intimidate the prosecutor into backing away from the idea of questioning him?

Probably not. Not unless he has photos of John Durham swinging from a chandelier in a black spandex catsuit.

Maybe not even then. It's hard to blackmail people in the Photoshop era.

Could he ask the Secret Service agents who still protect him to shoot the process server when he shows up with the subpoena?

He could ask.

No, the only way Mr. Cheney can avoid answering questions about the CIA interrogations is to seek cover under the Fifth Amendment to the U.S. Constitution. "No person...shall be compelled in any criminal case to be a witness against himself," the framers wrote.

They weren't big fans of torture.


Copyright 2009

Editor's note: You might be interested in the 2007 posts, "Dick Cheney's impeachable offense" and "The trouble with waterboarding."

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