Biden-Pardoned Jan. 6 Committee Members Can’t Likely Invoke Fifth Amendment

By Fred Lucas, The Daily Signal | March 03, 2025

After a congressional report alleged that Jan. 6 Committee members deleted documents and tampered with a witness, outgoing President Joe Biden pardoned every member. But that pardon could help the House GOP get closer to the truth. 

Legal experts point to Supreme Court precedent dating back to 1896 that would likely mean the Constitution’s Fifth Amendment right against self-incrimination wouldn’t extend to someone already pardoned of a potential crime in question. 

That would mean that those who have been pardoned could still be required to answer questions from a congressional panel and that they couldn’t claim the Fifth Amendment to avoid answering questions.

“The pardons of the committee members raise more questions,” Rep. Barry Loudermilk, R-Ga., told The Daily Signal. He added, “They can’t plead the Fifth, but they can be charged with contempt for failure to appear. I would prefer to get the information without calling them in.”

Biden pardoned every member of the House Select Committee to Investigate the Jan. 6 Attack on the Capitol, known as the Jan. 6 Committee, which probed the massive protest against Congress certifying Biden’s 2020 win. The committee consisted of seven Democrats and two anti-Donald Trump Republican members. House GOP members have probed whether the committee destroyed critical records from the investigation, including those that may have weakened its case against Trump.  

It’s unusual for members of Congress to be compelled to testify in a congressional hearing, but four of the members of the committee are no longer in the House. 

In December, the House Administration Subcommittee on Oversight—led by Loudermilk—released an interim report alleging the Jan. 6 subcommittee “destroyed or deleted” records from its investigation. 

The report also called for an investigation into the select committee vice chair, former Rep. Liz Cheney, R-Wyo., for possible witness tampering. It further alleged failures by the Defense Department, FBI, and Capitol Police to prevent the problems on Jan. 6, 2021. 

Biden also pardoned the staffers for members of the Democrat-run Jan. 6 Committee, as well as the U.S. Capitol and Washington, D.C., Metropolitan police officers who testified to the panel. 

The House is still in transition from the prior session of Congress but will continue the investigation, Loudermilk said, adding, “The White House is fully supportive.” 

“There were serious failures from multiple agencies and a serious cover-up by the select committee,” he said. 

Loudermilk said key to continuing the investigation will be obtaining the inspector general findings on how the Department of Homeland Security had prepared to respond on Jan. 6, 2021, and on Secret Service preparation for responding that day. Biden’s Homeland Security Secretary Alejandro Mayorkas blocked the release of the inspector general’s report, Loudermilk added. 

“The DHS inspector general report was never released. Mayorkas is holding it back,” he said. “We hope to get the inspector general report going forward.” 

A DHS spokesperson did not reply to an inquiry from The Daily Signal by publication time. 

The December interim report from Loudermilk’s subcommittee accused Cheney—defeated for reelection in 2022—of working with committee witness Cassidy Hutchinson, a former Trump White House aide, on her testimony without the knowledge of Hutchinson’s lawyer.

For her part, Cheney said the interim report “intentionally disregards the truth and the Select Committee’s tremendous weight of evidence, and instead fabricates lies and defamatory allegations in an attempt to cover up what Donald Trump did.”

The offices of five Democrat members of the select committee still in Congress and the the office of first-term Sen. Adam Schiff, D-Calif., (who was a House member at the time) did not respond to inquiries from The Daily Signal by publication time.

Fred Lucas is chief news correspondent and manager of the Investigative Reporting Project for The Daily Signal. 

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