They are refusing to answer all of the questions, to avoid implying that some refusals to answer might signal guilt.

Our James Lynch reports that yet another Biden-administration witness has invoked the Fifth Amendment right against self-incrimination upon being subpoenaed to testify in closed-door sessions convened by House Oversight Committee investigators. Annie Tomasini, President Biden’s former assistant and deputy director of Oval Office operations, today became the third witness to plead the Fifth in refusing to testify. As James details, Jill Biden’s top aide, Anthony Bernal, and President Biden’s physician and friend, Dr. Kevin O’Connor, previously took the Fifth.

These are significant developments, but they shouldn’t be overstated.

I have seen and heard reporting along these lines: It cites a specific question that a witness was asked — say, about use of the autopen (see our editorial) — and then notes that the witness refused to answer that question on the ground that a truthful answer might be incriminating. Understand, that is not an accurate reflection of what is happening.

Instead, on advice of counsel, the witnesses are refusing to answer all questions. They take this position because if they answer some questions but not others, they fear that (a) a judge could find that they have waived the Fifth Amendment privilege and must answer all questions, and (b) Republicans could convincingly claim — and some members of the press might even report — that they believed the answers to the non-answered questions would incriminate them. By answering no questions (or, at least, hardly any), they make it appear that the refusal to answer is rote, rather than an implicit admission of guilt. They also convey that, if the House wants their testimony, they will have to be given immunity.

The January 6 committee played this game, too. They would ask loaded questions, knowing that the witness would take the Fifth, then, in slickly produced videos, play isolated questions and refusals to answer, making it look as if the witness carefully thought about it and then refused to answer on self-incrimination grounds – rather than that the witness had refused to answer even benign questions.

In criminal trials, prosecutors are discouraged from asking questions in front of the jury if they know that the witness is seeking immunity and, without it, will take the Fifth in answer to all questions. And prosecutors cause a mistrial, and can face sanctions, if they use a defendant’s invocation of the right against self-incrimination to intimate to the jury that the defendant must be guilty.

That is not how things work in congressional hearings. Hence, I do not assume that the witnesses who are invoking the Fifth Amendment fear that answers to all questions might actually incriminate them (although I do assume they fear that the answers to some of the questions could imply guilt, or at least some kind of misconduct). I instead assume that the Democratic witnesses are stonewalling the Republican-led investigation in hopes that it will peter out, and that they are otherwise making clear that they will not testify without immunity from prosecution.