Last month, Martin Shkreli, perhaps the most reviled man in America, appeared before a congressional committee to answer questions about skyrocketing drug prices. The businessman infuriated Congress—and the general public—when he smugly asserted his Fifth Amendment right against self-incrimination. These were information-gathering, not criminal, proceedings, so did Shkreli have the right to do so?
It’s gonna be huge
Prior to the February 4 hearing, the House Oversight and Government Reform Committee released some of its findings regarding Shkreli’s actions while serving as CEO of Turing Pharmaceuticals. The documents revealed that the businessman was excited about the company’s progress toward acquiring the drug Daraprim, which is used to treat toxoplasmosis, a parasitic infection that can cause serious complications during pregnancy.
“I think it will be huge,” Shkreli wrote in August 2015. “We raised the price from $1,700 per bottle to $75,000 … So 5,000 paying bottles at the new price is $375,000,000 almost all of it is profit and I think we will get 3 years of that or more. Should be a very handsome investment for all of us. Let’s all cross our fingers that the estimates are accurate.”
“Pharma Bro” attitude
Shkreli, aka “Pharma Bro,” won no fans with his performance at the hearing. When the former drug executive faced members of Congress, he used mocking facial expressions and body language, rather than words, to indicate his position—one of general annoyance and an unwillingness to cooperate.
The committee questioned Shkreli’s decision to raise the price of Daraprim by more than 5,500 percent. The price for the medication went from $13.50 to $750 per tablet.
When Committee Chairman Jason Chaffetz asked Shkreli what he would say to a pregnant woman with AIDS who needed Daraprim, Shkreli invoked the Fifth. When Ranking Democrat Elijah Cummings attempted to appeal to his sense of morality, Shkreli smirked, rolled his eyes, and again refused to comment.
One committee member posed a question about Shkreli’s multimillion-dollar purchase of the sole copy of the Wu-Tang Clan album and was stonewalled. But when asked by Rep. Trey Gowdy how to pronounce his surname, Shkreli did respond. Gowdy commented, “So there are some questions you can answer.”
Despicable? Yes. An abuse of the Fifth Amendment? Not necessarily.
Does the Fifth Amendment even apply in this situation?
The Fifth Amendment to the Constitution protects citizens from self-incrimination, stating that no person “shall be compelled in any criminal case to be a witness against himself.” As Shkreli’s hearing was not a matter of criminal inquiry, was his taking the Fifth an appropriate response?
“[The Fifth Amendment] covers any statement that would tend to give rise to criminal liability on the speaker’s part,” says criminal defense attorney Christopher Corso, founder of Corso Law Group. “Mr. Shkreli fully had the right to plead the Fifth.” The hearing was more about the ethical than the criminal implications of Shkreli’s actions, but Corso says it comes down to who’s making the determination about what was and was not legal.
Moreover, the 32-year-old Shkreli is separately accused of bilking Retrophin, the pharmaceutical company he founded, to pay off investors of a fraudulent hedge fund. He has denied the criminal charges, but has been advised by his legal counsel to remain mum on the matter—and, by extension, to refuse to answer any questions about his business practices, as anything he says could be used against him in the criminal case.
“Until you’re with attorneys, you may be [unwittingly] adding information,” cautions Corso, “Answers that may perhaps—even in a miniscule way—open yourself up to criminal liability is a problem. Therefore, he is able to plead the Fifth.”
Did Congress intentionally try to make Shkreli look bad?
In a brief press conference following the hearing, Shkreli’s attorney Ben Brafman said that lawmakers treated his client unfairly because they knew he planned to invoke the Fifth. “Mr. Shkreli’s not a villain—he is not a bad boy,” Brafman said. “He is a hero…dedicated to saving lives.”
As for Shkreli’s smirks and mocking expressions, Brafman explained, “Mr. Shkreli did not intend to show any disrespect…what you saw was nervous energy.” Perhaps, but on social media Shkreli did later refer to the legislators as “imbeciles.”
Bottom line: No matter what you think of Shkreli, he was not improperly invoking his constitutional rights. “As somebody that advocates for the constitution,” says Corso, “I would say no, the 5th Amendment was not abused.”