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May 27, 2013

Think Tank Takers: Did Lois Lerner Incriminate Herself?

By

It is not clear that Lois Lerner, the embattled head of the IRS's tax-exempt organizations office, waived her Fifth Amendment right against self-incrimination, as has been suggested by commentators ... when she briefly appeared before the House Oversight Committee investigating the targeting of conservative organizations. Lerner proclaimed her innocence before asserting her Fifth Amendment right not to incriminate herself. ...

If this were a criminal prosecution, this would probably be an easier call. As the U.S. Supreme Court explained in 1951 in Rogers v. United States, a case involving a federal grand jury investigation of the Communist Party of Denver, a witness can waive her Fifth Amendment right against compelled self-incrimination by failing to assert it in a timely manner. ...

But Lerner's testimony was compelled by a subpoena. Furthermore, a congressional hearing is a civil proceeding, not a criminal prosecution. There is no question that the right against self-incrimination can be asserted in any civil proceeding, including a congressional hearing, whenever an answer in a deposition or direct testimony might subject the individual to criminal prosecution.

But would a court enforce the waiver rules as strictly in a civil proceeding such as a congressional hearing as in a criminal case? Probably not.

Lawyers usually allow their clients to answer questions in civil matters except for questions that raise potential criminal implications, in order to avoid having their client held in contempt for asserting the Fifth Amendment on matters in the civil proceeding that could not possibly be grounds for criminal prosecution. That is called "selective invocation." Most courts that have applied the Rogers test have erred on the side of permitting a witness and her counsel to determine when an answer will incriminate the witness. ...

Orin Kerr, a professor and expert on criminal procedure at George Washington University Law School, points out that "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?

First appeared in The Washington Examiner.

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