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Comment by imrehg | Hacker News Reader

As a non-lawyer, what would be the situation of this person is asked in the court about some of their actions that is explained by the existence of the gag order? Would "the truth, the whole truth and nothing but the truth" override that gag order, or they had to somehow withhold that information?

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I don't know if you were asking a rhetorical question, but my opinion is that if you were in court under those circumstances, it's likely you are going to jail. If the FBI finds out you talked, you will be jailed [as I presume that's the threat]; if the court finds out you lied, you will be jailed for perjury. Only if you perjure yourself but don't get caught will you escape.

You would take the Fifth Amendment and invoke your right against self incrimination.

While I suppose in practice this is true, I don't think the 5th amendment would technically apply. By mentioning the gag order you are not incriminating yourself but rather committing a crime.

The argument goes "whether or not you are under a gag order, you can plead the fifth without incriminating yourself, so this is not actually a lose-lose situation". In theory.

I understand your argument. My point was that revealing the gag order is not self-incrimination - it is committing a crime.

Technically speaking, you are only allowed to refuse to answer a question if you believe that answering will incriminate yourself.

The fifth amendment only applies in criminal cases. If you are in a civil case where the gag order comes up then you have no such protection.

"...nor shall be compelled in any criminal case to be a witness against himself..."

Nah, 5th amendment protections...

Even from a lawyer, any answer to that would just be opinion, since it hasn't been tested in court yet. I would tend to think testimony in court would override a gag order, but US courts are notoriously unpredictable.

Testimony in court had BETTER be paramount. If the NSA's secret orders can force court proceedings to be conducted falsely, we are in big trouble.

Although, if I were in this situation, I would ask to speak with the judge privately.

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