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Given that the committee had broadcast video of Michael Flynn asserting his Fifth Amendment right against self-incrimination in an earlier hearing, McAdoo Gordon said she wouldn’t be surprised if Tuesday’s hearings include clips of her clients refusing to answer the committee’s questions.
In fact, she said as much to the committee in a letter last week. After calling the lawmakers out for implying to the public that Flynn was guilty of some crime because he asserted his Fifth Amendment rights, McAdoo Gordon wrote that implying guilt based on a witness asserting his rights, “is a McCarthy-esque tactic that offends the Constitution and is unworthy of the United States Congress.” The attorney added that she is “forced to anticipate that the Committee will use the same totalitarian tactic to improperly smear 1AP.”
The irony is that McAdoo Gordon was working with the committee to arrange for her clients to testify voluntarily, within the bounds of the First Amendment, until the committee concocted what she has called a “cockamamie” criminal conspiracy theory. The committee argued in litigation with former Trump attorney John Eastman “that President Trump, Dr. Eastman, and others conspired to defraud the United States by disrupting the electoral count,” supposedly in violation of Section 371 of the federal criminal code, which makes it a crime to “conspire to defraud” the United States. The committee’s pushing of what she called a “preposterous” legal theory left McAdoo Gordon “with no option but to recommend that my clients assert their Fifth Amendment right against self-incrimination.”
McAdoo Gordon told The Federalist that during her clients’ depositions, the committee asked a series of questions that she likely would have allowed her clients to answer if the meeting had been on a voluntary basis. Putting aside the question of whether the committee was properly constituted, the 1AP’s attorney noted Congress had a legitimate interest in investigating the riots and violence at the Capitol on Jan. 6, 2021.
“What 1AP did, or more accurately put, didn’t do, on Jan. 6 was relevant to the committee’s investigation into the riot and the violence at the Capitol, and I was working to arrange for my clients to voluntarily provide the committee with that information,” McAdoo Gordon said. Likewise, the committee had questions about a couple tweets my clients sent on the sixth, and again, such questions were relevant to the Jan. 6 investigation. “
“But once the committee advanced the absurd Section 371 criminal conspiracy theory, I could no longer recommend my clients speak with the committee,” the attorney explained. McAdoo Gordon did respond to the committee on behalf of her clients, however, after Raskin “falsely described 1AP as a ‘far right’ group with a ‘role’ in the ‘Capitol attack’” in his interview with the Times. “All of those points are false and defamatory,” she told the committee. “1AP is a mainstream, non-partisan group with no role whatsoever in the attack on the Capitol.”
Violating the First Amendment
It isn’t just the Fifth Amendment the committee has been shredding, however. “Even if my clients did not assert the Fifth Amendment, I would have still objected to several questions on First Amendment grounds,” McAdoo Gordon added. While some questions related to Jan. 6 were relevant, the majority of the questions posed to 1AP representatives were none of Congress’s business, McAdoo Gordon stressed. And even the process reveals the warped authoritarianism of the committee, the attorney added.