The Fifth Amendment to the U.S. Constitution states that no person “shall be compelled in any criminal case to be a witness against himself” (emphasis added). A court or an ALJ cannot make you testify if it would compromise your case in a parallel criminal action, but the judge can draw negative conclusions from invoking the Fifth. In other words, don’t invoke the Fifth Amendment just to be petulant in front of an ALJ. Consult your counsel to determine whether invoking the Fifth makes litigation sense given your civil and criminal predicament.
The SEC has stayed all administrative proceedings assigned to Administrative Law Judges if a decision could be appealed to the Tenth Circuit Court of Appeals (based in Denver) until time has expired to appeal to the Supreme Court. The SEC’s decision follows a Tenth Circuit decision (Bandimere v. SEC) that SEC ALJs are not appointed consistent with the U.S. Constitution’s Appointments Clause. The Tenth Circuit’s decision conflicts with other federal courts, which would provide grounds for the SEC to appeal the decision to the Supreme Court.
OUR TAKE: The SEC will only appeal to the Supreme Court if it thinks it will win because a loss would have significant consequences to previously-decided cases, other federal agencies, and the SEC’s operations. Instead, the SEC may just change the way it appoints ALJs and avoid a further federal imbroglio.