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By Andrew Stanton
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Three Biden associates have now invoked Fifth Amendment privilege during testimony before the House Oversight Committee, raising red flags for some amid a probe pertaining to concerns over former President Joe Biden's health.
Legal analysts, however, reiterated to Newsweek that taking the Fifth does not necessarily mean witnesses are guilty of any crime.
Why It Matters
On Friday, Annie Tomasini, a longtime former aide and deputy chief of staff to Biden, invoked the Fifth Amendment during questioning, just days after Anthony Bernal, who served as an aide to Jill Biden, did the same. Joe Biden's former doctor, Kevin O'Connor, also invoked the Fifth Amendment during a hearing into the "investigation into the cover-up of President Joe Biden's mental decline and potentially unauthorized executive actions" last week.
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The move raised eyebrows among conservatives, who have alleged Biden officials sought to cover up concerns over whether the former president was experiencing a mental decline while in office. The investigation also focuses on pardons allegedly signed by autopen, which have come under GOP scrutiny.
What To Know
Pleading the Fifth refers to the Fifth Amendment of the U.S. Constitution, which states that no individual shall be "compelled in any criminal case to be a witness against himself."
Representative James Comer of Kentucky, who leads the House committee, said on Friday there is now a "pattern of key Biden confidants seeking to shield themselves from criminal liability for this potential conspiracy" following Tomasini's testimony.
According to Comer, she pleaded the Fifth when asked if "anyone at the White House instructed her to lie regarding his health at any time," "if she ever advised President Biden on the handling of classified documents found in his garage," "if President Biden or anyone in the White House instructed her to conceal or destroy classified material found at President Biden's home or office" and "if she ever conspired with anyone in the White House to hide information regarding the Biden family's 'business' dealings."
Bernal's invocation of the amendment drew scrutiny from conservatives earlier this week. Comer wrote in a statement, "During his deposition today, Mr. Bernal pleaded the Fifth when asked if any unelected official or family members executed the duties of the President and if Joe Biden ever instructed him to lie about his health."
"This is a historic scandal and Americans demand transparency and accountability. We will continue to pursue the truth on their behalf and examine options to get the answers we need," he wrote.
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Representative Byron Donalds, a Florida Republican, shared similar sentiment, writing to X, formerly Twitter, that Bernal "couldn't answer A SINGLE QUESTION."
Representative Nancy Mace, a South Carolina Republican, wrote on X, "If there's nothing to hide, why plead the Fifth? The American people deserve answers and we will get to the truth."
Legal analysts told Newsweek that pleading the Fifth does not necessarily mean a person believes they have committed a crime.
"If someone pleads the fifth, that indicates that they are worried that their answers could put them in legal harm's way. If you get immunity, you cannot plead the fifth. But if you don't get immunity, you plead the fifth because you are concerned that your answers could [cause] criminal charges to be brought against you," former federal prosecutor Gene Rossi told Newsweek.
Pleading the Fifth "makes perfect sense" in light of Trump's retribution promises, Rossi said.
The move is not surprising, former federal prosecutor Neama Rahmani also told Newsweek on Wednesday.
"It has less to do with them being guilty than it has to do with their legal exposure. [President Donald] Trump and his Department of Justice officials have made public statements indicating that they may go after Biden appointees," he said.
There is a "real" risk of political retribution, he said, noting that testifying before the GOP-led Congress "is a no-win situation" for ex-Biden officials and "can only create evidence that can be used against them."
Conversely, Michael McAuliffe, ex-federal prosecutor and former elected state attorney, told Newsweek that the invocations surprised him.
"The fact that two former Biden aides invoked their fifth amendment rights against self-incrimination in congressional investigation depositions is surprising," he said. "As to the former White House physician, his attorney stated the invocation was to avoid releasing patient-doctor information. If that's so, invoke that privilege, not a right against self-incrimination."
They could be pleading the Fifth for tactical reasons—not necessarily based on evidence of criminal liability, McAuliffe said, adding that is not "technically the correct method of protecting a client from an investigation, but it might prove effective in the event the congressional inquiry proves overly partisan, or excessively punitive."
Whether there is a potential crime to support the invocation, however, is "speculative at best," McAuliffe said.
Lawyers for Bernal and O'Connor also asserted that pleading the Fifth does not mean their clients committed a crime. "We want to emphasize that asserting the Fifth Amendment privilege does not imply that Dr. O'Connor has committed any crime," O'Connor's lawyers said in a statement last week.
The use of the Fifth Amendment is certainly nothing new in today's political climate. Several former Trump officials who testified before the House committee investigating the January 6 siege on the U.S. Capitol waged by the president's supporters frequently invoked the Fifth during questioning.
Trump himself invoked the Fifth 450 times during New York Attorney General Letitia James' investigation into his businesses, reported NBC News.
Rossi said that those testifying before the January 6 committee viewed it as a "witch hunt" aimed at establishing criminality, so it was "justified" for them to plead the Fifth as well.
What People Are Saying
Representative Pat Fallon, a Texas Republican, wrote to X: "These are simple questions... If Joe Biden was really 'healthy, active, robust,' why take the Fifth? This is a pretty unconvincing cover-up."
Michael McAuliffe, ex-federal prosecutor and former elected state attorney, also told Newsweek: "The invocation of the fifth amendment right against self-incrimination is a bedrock constitutional right and courts tend to broadly define it. However, 'pleading the fifth' has become a tactic of choice when being subpoenaed to testify about executive activities, and particularly, in politicized scenarios like a congressional inquiry run by one party."
Bernal's attorney, Jonathan Su, said in a statement reported by The Hill: "Under these circumstances, it is entirely appropriate and justified for Mr. Bernal to invoke his rights under the Fifth Amendment to the Constitution."
What Happens Next?
House Republicans will likely continue their investigations of the Biden administration over the coming months. Comer told ABC News that former Vice President Kamala Harris and Jill Biden should both be subpoenaed.
"So we're going to bring in everyone. We're moving up the line," Comer said.
Update 7/18/25 12:46 p.m. ET: This article was updated with additional information.
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