Will Jon Corzine Plead the Fifth?

Jon Corzine
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Jon Corzine

Jon S. Corzine, the former chief executive of MF Global, has been subpoened by the House Agricultural Committee to appear on Thursday at hearings about MF Global.

He’s very likely to refuse to testify.

Corzine will almost certainly “take the Fifth”—refusing to answer questions from members of the committee on the grounds that the Fifth Amendment to the constitution protects him from being forced provide testimony that could be incriminate himself.

This will be an extraordinary event. It may be the first time a former US Senator has ever relied on the protection of the Fifth Amendment to shield himself before a Congressional inquiry.

The Fifth Amendment protection against self-incrimination is available to witnesses in any official proceeding, whether civil or criminal. It is not an admission of guilt and cannot be officially used as evidence of wrong-doing. But the sight of a prominent public figure such as Corzine repeatedly refusing to answer questions from lawmakers can create a public opinion backlash.

What’s more, investigators often view taking the fifth as a sign that the witness has something to hide. They dig more, attempting to discover what it was that the witness was afraid would be revealed.

Corzine could also refuse to show up at all—but that is unlikely. If Corzine ignored the subpoena from the committee, the House could instruct federal marshals to physically force him to attend the hearing. He could be arrested for refusing to comply with the subpoena and possibly charged with being in contempt of Congress.

Given the reputational costs of taking the Fifth, Corzine might be tempted to answer questions on Thursday. It’s always tempting to tell your side of the story, especially if you really believe you did not engage in any wrong-doing.

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Cooperating with investigators, however, can be legally hazardous.

Giving testimony under oath raises the possibility of being charged with perjury if it later develops that prosecutors believe the statements were false or intentionally misleading. Martha Stewart, for example, was famously convicted of misleading Securities and Exchange Commission investigators despite never being found guilty of any other crimes.

Most lawyers would advise a client in Corzine’s position not to testify.

If Corzine does take the Fifth on Thursday, it will likely not be for the last time. Two other Congressional committees are considering issuing subpoenas. The Federal Bankruptcy Court overseeing MF Global’s liquidation has authorized the trustee for MF Global, to issue subpoenas to former executives of the firm. The Federal Bureau of Investigation, the SEC and the Commodity Futures Trading Commission all have ongoing inquiries.

All eyes will be on Corzine Thursday, when we’ll learn whether he has decided to cooperate with Congressional investigators or use the constitution as a shield.

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