When a senator takes the Fifth

January 10, 1994

Sen. Bob Packwood is the first senator in history to "take the Fifth." He has done so to keep from having to turn over his diary to the Senate Ethics Committee. This means he is invoking the Fifth Amendment's privilege against self-incrimination. ("No person . . . shall be compelled in any criminal case to be a witness against himself.") The Senate Ethics Committee has subpoenaed Mr. Packwood's diary in connection with its investigation of charges that he had harassed women, including Senate employees, and tried to cover that up by intimidating witnesses.

In refusing to turn over the diary, Senator Packwood had at first cited only "privacy" as the basis for keeping it to himself. We support him in that effort. We believe the Fourth Amendment does protect one's privacy in a case like this. This is especially true when, as in this case, the investigators seek the right to search for incriminating material unrelated to their responsibilities to see if harassment and related abuse of office had occurred. They want to see everything Senator Packwood confided to his diary.

There have been leaks to the press, apparently from senators or Senate aides, to the effect that the Packwood diary may contain evidence that he broke the law in dealing with lobbyists. The Justice Department has also subpoenaed the diary. The First and Fourth amendments protect Mr. Packwood equally as well against criminal prosecutors as against senatorial investigators. Perhaps the Fifth Amendment does too, in both cases, though there is some question if the Fifth applies to private papers as well as to testimony.

We would like to think the judiciary will uphold Senator Packwood's right to keep his diary to himself. However, his formally invoking the Fifth Amendment has changed some things. And we don't mean merely the technical legal question of whether there is distinction between papers and testimony. We mean, when a United States senator takes the Fifth, he has incriminated himself politically if not legally. He no longer has a right to exercise his duties in his office of trust. Not while the case -- cases -- against him are proceeding.

There is a body of law dealing with some public officials who take the Fifth. It authorizes suspension from duties. Does this apply to senators? It ought to, but since in the 204-year history of the Senate, no senator -- not even one under indictment -- has ever invoked the constitutional right against self-incrimination, the Senate has no rules dealing with the question.

Senator Packwood ought voluntarily to forgo voting and performing other official duties until the cloud over him has been dealt with. If he doesn't the Senate should force him to stand aside. Otherwise, there will be a cloud over the Senate.

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