SERE training (Survival, Evasion, Resistance and Escape) came to public prominence with investigations into Bush-era “enhanced interrogation techniques” used against captives in Global War on Terror (GWOT). What began as training troops for resisting torture became a handbook for Americans inflicting it. Those responsible at the highest levels ultimately went unpunished for what if practiced by lower-level military would be considered war crimes.
Donald Trump White House officials have developed their own version of SERR for avoiding interrogation of their roles in the Jan. 6 insurrection. Former White House chief of staff Mark Meadows’s suit filed Wednesday against Speaker Nancy Pelosi and the Jan. 6 House investigating committee. That may be frivolous and a joke, but it is not the only tactic Trump loyalists have for evading capture and questioning by Congress.
Politico reports that when executive privilege claims fail to shield them from testifying, Trump confidants will plead the Fifth:
In recent days, three witnesses with ties to Donald Trump have signaled they intend to invoke their constitutional right against self-incrimination. They include John Eastman, the attorney who helped lead a campaign pressuring Mike Pence to block Congress from certifying Joe Biden’s victory; Jeffrey Clark, the Justice Department lawyer whom Trump considered installing as acting attorney general to support his effort to subvert the election; and Roger Stone, a longtime Trump confidant.
Conspiracy podcaster Alex Jones told his listeners he might do the same.
Legal experts say the committee has few options once a witness pleads the Fifth — and the choices they do have are risky or impractical.
“It is a concerning development,” said Barb McQuade, former U.S. Attorney for the Eastern District of Michigan. “I think we are seeing more use of the Fifth Amendment privilege because it is an unqualified privilege. Executive privilege must yield to a greater national interest. Attorney-client privilege has an exception for communications made in the perpetration of a crime or fraud. The Fifth Amendment privilege does not have those exceptions.”
Rep. Bennie Thompson (D-Miss.) who chairs the Jan. 6 committee doubts Clark’s Fifth Amendment claim has merit.
Merit is not the strategy. Delay is.
“This is, in my view, a last-ditch attempt to delay the Select Committee’s proceedings,” Thompson said last week just before the panel voted to hold Clark in contempt of Congress. “However, a Fifth Amendment privilege assertion is a weighty one.”
The witnesses hope to stall the investigation until the 2022 elections can return control of the House to Trump’s allies who will then kill the investigation.
“It’s remarkable that so many people in Donald Trump’s orbit apparently believe that if they testify they may expose themselves to criminal prosecution,” said Rep. Adam Schiff (D-Calif.).
The committee could circumvent the Fifth Amendment by offering immunity from prosecution, but this “could derail any investigation into criminal activity that the committee reveals,” Politico notes. It worked for Oliver North, mostly.
Another option for the Jan. 6 panel is to file a civil contempt lawsuit and seek a judge’s review of the witness’ claim, but that could be a protracted effort at a time the committee is racing against a dwindling calendar. And it might not work.
“Courts will be reluctant to order witnesses to testify … if there is any potential for prosecution,” McQuade said.
A third option that some committee members — and other House Democrats — have floated is the concept of “inherent contempt.” That’s a process by which Congress bypasses the Justice Department and simply arrests or fines any recalcitrant witness. But House General Counsel Douglas Letter has made clear for years that this option is not realistic to pursue. It hasn’t been deployed in a century and it could lend itself to dangerous abuses in a body that is inherently political.
That, in a nutshell, is a short course in SERE for how Trump administration officials can evade accountability for participation in sedition. If they participated in sedition. Which they are determined not to let Congress or the American public interrogate.