May 23, 2013
By Hans A. von Spakovsky
Did Lois Lerner, embattled head of the IRS’s tax-exempt organizations office, waive her Fifth Amendment right against self incrimination in her brief appearance before the House Oversight Committee? I hate to say it, but… it’s just not clear.
Lerner sparked an intense legal debate by making a short statement proclaiming her innocence, then pleading the Fifth and walking out of the hearing room. After briefly dismissing an Inspector General’s report on the IRS scandal and congressional accusations that she had provided the committee with false information, Lerner declared:
I have not done anything wrong. I have not broken any laws. I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee.
She then asserted her Fifth Amendment privilege “not to testify or answer questions related to the subject matter of this hearing.”
If this were a criminal prosecution, there would be little debate. In criminal cases, a witness waives his Fifth Amendment right by failing to assert it in a timely manner. That is why defense lawyers often advise their clients to provide their names to investigators but not answer any other questions.
Had Lerner voluntarily agreed to testify in a criminal case, no court would allow her to assert the Fifth Amendment after giving direct testimony that she had not done anything wrong, broken any laws, or provided false information. Prosecutors would have the right to cross-examine her about her testimony. She would not be allowed to say her piece, then point to the Constitution and clam up.
But Lerner did not voluntarily agree to testify before Congress. It took a subpoena to get her into the committee room. Furthermore, a congressional hearing is a civil proceeding, not a criminal prosecution. And in any civil proceeding, a witness can assert the right against self-incrimination whenever an answer in a deposition or direct testimony could subject the individual to criminal prosecution. This rule certainly applies to testimony before Congress.
But would a court enforce the waiver rules as strictly in a congressional hearing as in a criminal case? Probably not. There seems to be no case law directly bearing on this type of congressional hearing. Keep in mind that Lerner was not testifying in a criminal trial where the government has the greatest interest in obtaining evidence about wrongdoing. Rather, she was in front of a congressional body conducting a legislative inquiry as part of its oversight authority.
In civil matters, lawyers generally allow their clients to answer questions except for those that raise potential criminal implications. It’s called “selective invocation.” The idea is to cooperate wherever possible, to avoid being held in contempt of court for making a blanket assertion of the Fifth Amendment on matters that could not possibly lead to a criminal prosecution.
Traditionally, courts try to find remedies other than a contempt citation to deal with a problematic “selective invocation” in a civil proceeding. They may allow the decision-maker (be it a jury or, in this case, Congress) to draw an adverse inference from the witness’s invocation. Or, they may strike the self-serving testimony that preceded the invocation from the record. Courts have held that waiver of the Fifth Amendment is not to be “lightly inferred” and that “every reasonable presumption against finding waiver” should be indulged.
As Orin Kerr, an expert on criminal procedure at George Washington University, points out, “the tricky part is how to characterize Lerner’s testimony before she invoked the Fifth Amendment.” Was she simply expressing her opinion that she is innocent? Or was she asserting actual facts about a matter that could subject her to criminal prosecution by the Justice Department?
Lerner’s short statement is open to interpretation on that issue -- something that is often the case in the law.
-Hans von Spakovsky is a Senior Legal Fellow in The Heritage Foundation’s Center for Legal and Judicial Studies. He is a former Commissioner at the Federal Election Commission and lawyer in the Justice Department.
First appeared in Foxnews.com.
Rule of Law Initiative of the Leadership for America Campaign
Hans A. von Spakovsky
Manager, Election Law Reform Initiative and Senior Legal Fellow
Read More >>
Request an interview >>
Please complete the following form to request an interview with a Heritage expert.
Please note that all fields must be completed.
Heritage's daily Morning Bell e-mail keeps you updated on the ongoing policy battles in Washington and around the country.
The subscription is free and delivers you the latest conservative policy perspectives on the news each weekday--straight from Heritage experts.
The Morning Bell is your daily wake-up call offering a fresh, conservative analysis of the news.
More than 200,000 Americans rely on Heritage's Morning Bell to stay up to date on the policy battles that affect them.
Rush Limbaugh says "The Heritage Foundation's Morning Bell is just terrific!"
Rep. Peter Roskam (R-IL) says it's "a great way to start the day for any conservative who wants to get America back on track."
Sign up to start your free subscription today!
The Heritage Foundation is the nation’s most broadly supported public policy research institute, with hundreds of thousands of individual, foundation and corporate donors. Heritage, founded in February 1973, has a staff of 275 and an annual expense budget of $82.4 million.
Our mission is to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense. Read More
© 2013, The Heritage Foundation Conservative policy research since 1973