The Risky Fifth: A Long Hot Summer in Congressional Jurisprudence

It has been an eventful summer for followers of congressional oversight, with significant implications for individuals and organizations of all stripes. As we move closer to the midterms and then the 2028 general election, private entities both in the US and overseas will find themselves increasingly pulled into the middle of clashes between Republicans and Democrats — and those disputes are inevitable, regardless of election outcome.

The summer’s developments around the role of the Fifth Amendment in congressional investigations show how a Hill inquiry can escalate into a significant, board-level risk with incredible speed. Essentially, the law amounts to this: yes, you still have your constitutional rights in a congressional setting. But asserting them could cost you dearly, at least in the short run.

In-house counsel must prepare for the full range of threats these investigations can pose, including a focus on prevention and mitigation. That means understanding the civil and criminal law risks, as well as the scope of one’s constitutional rights. But it also means foreseeing and planning for the short-term political and public relations risks that can come from engagements with the Hill, where a single tweet — let alone a contentious public hearing — has the power to rattle executives and shareholders, impact related litigation matters, and shift a company’s stock price. You could be right on the law but still end up engulfed in a damaging controversy.

In this alert, Crowell's Congressional Investigations team outlines the bind in which those targeted by Congress--including government contractors and multinationals in the technology, healthcare, life sciences and defense industries--may soon find themselves.

The “Perjury Trap”

On July 29, 2026, Senator Rand Paul summoned Dr. Anthony Fauci to testify before the Homeland Security and Governmental Affairs Committee (HSGAC) about Fauci’s handling of the COVID-19 pandemic. In his opening statement, Dr. Fauci asserted that the Senate lacked a legitimate basis for seeking his testimony. He then spent the next three hours being questioned by Senators, invoking his Fifth Amendment right against self-incrimination more than 100 times.

Dr. Fauci most likely did this to avoid the “perjury trap,” in which Congress calls a witness in for hours of on-the-record testimony, then sends staff back to comb the record for any indication of a misstatement that can (more or less) credibly be said to have misled the committee. Congress then refers the witness for criminal prosecution based on the misstatement. In his opening statement, Dr. Fauci pointed to the fact that Senator Paul had repeatedly called for him to be prosecuted, asserting that “the sole reason [the senator] is calling me before this committee is to get me to say something, anything, that could vindicate his repeated public pledges that I end up, in his words, ‘behind bars.’”

Dr. Fauci’s fears may not be speculative: the House Judiciary Committee did basically this on July 22, using a single passage from an hours-long deposition of former Special Prosecutor Jack Smith as the basis for a criminal referral. In September 2025, former FBI Director Jim Comey was indicted on a similar charge. Even though was almost immediately dismissed, it still took a political and financial toll.

Two days after Dr. Fauci’s hearing, on July 31, the U.S. Court of Appeals for the D.C. Circuit weighed in. The court affirmed in de la Torre v. Cassidy, No. 25-5353 (D.C. Cir. 2026), that the Fifth Amendment right against self-incrimination does apply in congressional investigations. But it also held that taking the Fifth does not protect witnesses from having to appear before Congress, even where those targeted by an investigation claim that the legislators’ real purpose is to “publicly humiliate and degrade [the witness] while he st[ands] silently on his Fifth Amendment privilege.”

One week later, on August 6, HSGAC, under Chairman Paul, voted to do exactly as Dr. Fauci had predicted, and referred him to the U.S. Department of Justice (DOJ)for criminal prosecution. For historical perspective, one of the last times a witness was prosecuted for taking the Fifth in a congressional hearing was in 1949, during the McCarthy hearings. Mr. Thomas Quinn, a labor leader, was called to testify before the House Un-American Affairs Committee and took the Fifth rather than testify about the political beliefs of any of his colleagues. The committee referred him for criminal prosecution. Six years later, in Quinn v. United States, 349 U.S. 155 (1955), the U.S. Supreme Court held that this was improper. But the damage was already done: Mr. Quinn had been publicly labeled as a Communist. In 1953, as his case was winding through the courts, he was again summoned to testify, this time before the Senate Internal Security Subcommittee. He again took the Fifth. He was fired from his job the next month.

As Crowell’s team unpacks below, Cassidy highlights a significant development for clients facing congressional oversight, as the private sector increasingly finds itself in the crosshairs — a trend that Cassidy itself illustrates.

de la Torre v. Cassidy (D.C. Cir. 2026): Sit There and Take It

de la Torre v. Cassidy, No. 25-5353 (D.C. Cir. 2026) stems from the collapse of which filed for Chapter 11 bankruptcy on August 23, 2024. Three weeks later, on September 12, the Senate Committee on Health, Education, Labor and Pensions (HELP) summoned Steward’s CEO, Dr. Ralph de la Torre, to testify.

The CEO refused to appear, instead submitting a written response and asserting via counsel that “[i]t is not within this Committee’s purview to make predeterminations of alleged criminal misconduct under the auspices of an examination into Steward’s bankruptcy proceedings, and the fact that its Members have already done so smacks of a veiled attempt to sidestep Dr. de la Torre’s constitutional rights by seeking sworn testimony on matters for which the Committee has pre-determined his guilt.”

In response, the HELP Committee held a hearing at which the CEO’s nameplate appeared before an empty chair. It then voted — 20-0 on a bipartisan basis — to hold Dr. de la Torre in contempt of Congress and to refer him for criminal prosecution.

On September 30, 2024, Dr. de la Torre filed suit in Washington, D.C. against the committee and nearly all its members, arguing that their actions, including issuing and attempting to enforce the subpoena as well as the contempt resolutions, violated his Fifth Amendment rights and exceeded the committee’s legislative authority. The HELP committee moved to dismiss and won on the basis of the Constitution’s Speech and Debate Clause.

In affirming that dismissal nearly two years later, the D.C. Circuit held two things. First, the Fifth Amendment right against self-incrimination applies and can be properly invoked in the context of a congressional investigation. Clients in parallel proceedings, such as where they are being investigated both by Congress and the DOJ, should take comfort in this.

Secondly, however, the Fifth Amendment does not allow a witness to simply refuse to appear.  Rather, the court wrote, “Dr. de la redress was to exercise his Fifth Amendment rights at the hearing, and he can still raise a constitutional defense should a contempt prosecution move forward.” (emphasis added). In other words, you have the right to remain silent, but you must show up and assert that right before the committee and the cameras, or risk jail time.

Conclusion

The strong reaction to Cassidy this summer is unsurprising, as it essentially puts every C-suite executive facing a congressional inquiry in the same posture as Dr. Fauci. Witnesses [JV1] [JB2] can assert their constitutional rights, but the resulting litigation could take years. Executives who are called on to testify by either Democratic or Republican committee chairs are also more likely than ever to be threatened with prison, if for nothing else than the political motivations of committee members. In the meantime, headlines will abound, and your board will be thinking in terms of the next hour, the next day, and the next quarter.

Navigating this environment takes a 360-degree approach that accounts for law, politics, the next five minutes, and the next few years.