When a former Defense Department counsel appointed by Barack Obama goes on CNN to say that invoking the Fifth Amendment 111 times made a witness’s legal situation worse, it’s hard to spin that as a win for the witness.
That’s the assessment Ryan Goodman delivered to Erin Burnett on Wednesday night. Goodman is an NYU law professor, a former Obama-era Pentagon lawyer, and not someone with any ideological motivation to help Republicans build their case. His verdict was blunt: “I think it makes it worse.”
His reasoning is straightforward. If President Biden’s pardon is valid, it covers conduct before January 2025, meaning the witness cannot face criminal prosecution for actions taken before that date. And if there is no criminal jeopardy, there is no legitimate Fifth Amendment protection. The Fifth Amendment shields people from being compelled to incriminate themselves. Remove the possibility of incrimination, and the shield disappears.
As originally reported, Goodman put it plainly: “He does not face criminal jeopardy for the pardon. In all likelihood, he’s pardoned for all actions before January 2025. But that also means that you’re forced to testify.” Refusing to testify without a valid constitutional basis, he noted, opens the door to contempt. “There could be, theoretically at least, a Justice Department that goes after him for not answering when he is not really facing that criminal charge.”
Senator Rand Paul has already scheduled a contempt vote for next week.
But there is a second layer to this that may explain the strategy, however risky. Florida has opened a state-level investigation. A federal pardon covers federal offenses only. It provides zero protection against state prosecution. If testimony given freely under the federal pardon contained anything that could be used in a Florida state court proceeding, that pardon would offer no cover whatsoever. So the legal calculus may have been this: better to risk a federal contempt charge than to hand state prosecutors usable material.
That reasoning, if accurate, carries an uncomfortable implication. You do not refuse to testify when you are fully protected. You refuse when you believe there are gaps in that protection, whether that means state-level exposure, questions about how the pardon was signed, the possibility of perjury charges for post-pardon statements, or conduct that falls outside the pardon’s scope entirely.
So where does this leave things? An Obama-appointed lawyer called the Fifth Amendment approach counterproductive. A contempt vote is on the calendar. Florida’s investigation remains open. Questions about the pardon’s validity are working their way through the courts.
The witness arrived with a security detail, delivered an opening statement, and then declined to answer 111 questions.
It was a remarkable performance, and not in the way anyone’s legal team would have hoped.