Waving Good-Bye To The Fifth

Lois Lerner, following her planted question and “leaked” response about the IRS’s targeting conservative political groups for special love, was hauled before a congressional committee because the politicians couldn’t bear a front page story that didn’t include their names.

Lerner, along with her counsel,  appeared before the House Oversight and Government Reform Committee, under chairman Darrell Issa (R-CA) and gave an opening statement that included these words:

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.

And while I would very much like to answer the committee’s questions today, I’ve been advised by my counsel to assert my Constitutional right not to testify or answer questions related to the subject matter of this hearing.

After very careful consideration, I’ve decided to follow my counsel’s advice, and not testify or answer any of the questions today.

Oh boy. And so the storm began, with Issa and Trey Gowdy (R-SC) calling foul.

Republicans protested. “She just waived her Fifth Amendment right to privilege. You don’t get to tell your side of the story and then not be subject to cross-examination. That’s not the way it works, ” said Rep. Trey Gowdy, R-S.C. “She ought to stand here and answer our questions.”

But Chairman Darrell Issa, R-Calif., dismissed Lerner, saying she could be recalled if committee lawyers determine that she waived her rights by delivering an opening statement. At the end of the hearing, Issa said he is “considering” recalling Lerner because “she made assertions, under oath, in the form of testimony” in her opening. He struck the gavel saying the hearing was in recess, not closed.

As Orin Kerr explains the general rule at Volokh Conspiracy:

The general rule is that a witness can’t testify about her version of the facts and then invoke the Fifth Amendment when facing cross examination. Here’s what the Court said in Mitchell v. United States, 526 U.S. 314, 321(1999) :

It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. See Rogers v. United States, 340 U.S. 367, 373 (1951). The privilege is waived for the matters to which the witness testifies, and the scope of the “waiver is determined by the scope of relevant cross-examination,” Brown v. United States, 356 U.S. 148, 154—155 (1958). “The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry,” id., at 155. Nice questions will arise, of course, about the extent of the initial testimony and whether the ensuing questions are comprehended within its scope, but for now it suffices to note the general rule.

Unfortunately, the language is loose and provides little guidance, either for this circumstance or Lerner’s words.  No doubt her lawyer gave extremely careful thought to the language offered in her opening statement, concluding with her invocation of her Fifth Amendment privilege, but that doesn’t mean she didn’t tread too close to the line.

An assertion of innocence is not, in itself, an assertion of fact, but a conclusory assertion. For Lerner to have said “I violated no law” would certainly not have constituted a waiver of privilege.  But that’s not what she said, as she went a bit farther, getting closer to the nitty gritty by speaking to IRS rules and regs, and false information. 

Initially, a very important aspect to the invocation of the Fifth needs to be made crystal clear. It is not tantamount to an admission of guilt. Not even close. It is the invocation of a right not to say anything that could be used to incriminate you in a criminal prosecution.  The use of otherwise truthful statements of fact to convict otherwise innocent people happens, and by no means does any reasonably intelligent person think that innocent people have nothing to hide and should therefore have no reason to assert their rights.

But the assertion of the privilege is generally not acceptable in blanket form, instead being limited to a specific query.  Ask a person 100 questions and they will answer maybe 70 (just an arbitrary number), while refusing the remainder. That’s because most questions don’t evoke a response that has a good faith potential to incriminate.

Many are just basic background questions used to form the foundation for what happened.  Just because questions are asked that relate in some way to a matter of concern doesn’t mean that answers can be avoided by invocation of the Fifth. There must be a specific good faith basis for the assertion.

While the storm swirls around the media and blawgosphere, the question remains whether Lerner’s opening statement, where she gets in the part she wants people to hear but refuses to subject herself to unpleasant questions, constitutes a waiver of her Fifth Amendment privilege. Like so many such issues, people tend to find it “simple” to answer based upon their politics or perspective.  Simple it ain’t.

Had she merely proclaimed innocence of wrongdoing, it would be fairly clear that her words did not constitute a waiver.  But she went well beyond a mere conclusory assertion of innocence, and touched upon the specifics of the matter.  IRS rules and regs? False statements? Those go deeper than “I didn’t do nothin’ to no one.”

Much as I am of the view that the sweep of the Fifth should be broad in order to fulfill its purpose, I am also of the view that once a witness offers denials to particulars, she opens herself to being questioned on what particulars she’s denying.  Which rules and regs is she referring to? What about this statement? What about that? Isn’t it true that you said….  Well, that’s how examination happens sometimes.

No doubt her lawyer, William Taylor III, thought long and hard about her opening statement, how far it should go, how far it can go, before Lerner took one step too far.  It’s not an easy decision, given that there is no clear line.  Some might have counseled Lois Lerner not to step anywhere near the line so that there would be no question of waiver.  Some might push the envelope, allowing her to toe the line as closely as he thought possible.  And when the second option is chosen, maybe a toe goes over the line.

I fear Lois Lerner put a toe on the line. I write this with a small sense of shame, knowing that Dersh and I are in relative agreement for the first time in decades, but even a blind squirrel finds the occasional nut.  And the occasional nut can be found on the floor of Congress, if not Sutton Place.

9 comments on “Waving Good-Bye To The Fifth

  1. Marc R

    Why would an attorney advise her to speak to the IRS regs being followed at all? If she invokes the 5th without answering substantive questions then congress won’t “clear” her of anything. House repubs won’t clear her even if she answered every question without invoking for a week of testimony. Is there some benefit to her toeing the line?

  2. SHG

    Frankly, I can’t fathom why he would advise her to get so specific either. Had it been me, I would have kept her a mile away as there is nothing to be gained, except a moment in the sun and its ensuing controversy, by taking such a wild risk.  Having already done what she did by leaking the IRS’s targeting of tea party entities for special scrutiny, there was nothing left to be gained.

  3. Shawn McManus

    Do congressional hearings operate within the same parameters as a “regular” court?

    As I understand, to even invoke the 5th, one must be present.

  4. SHG

    No, they’re nothing like a regular court, but since the testimony is under oath, it has all the potential for harm with none of the balance of due process.

  5. Michael Woodyard

    Isn’t it generally true that, if a witness becomes unavailable before being subjected to cross, her prior testimony (in this situation, her “opening statement”) would simply be stricken from the record? Would that work in this case? Perhaps not to unring the bell of the media hoopla, but for purposes of the Congressional record?

  6. SHG

    The testimony here is informational. The testimony at trial leads to a verdict, so the situations aren’t really comparable.

  7. Gregory Koster

    Dear Mr. Greenfield: I am sorry you did not title your post:

    “Waiving Good-Bye to the Fifth”

    Like many others, I am astonished that Lerner would say anything beyond on advice I’m taking the Fifth and then shutting up. Is it paranoid to think that this was a signal to The Won that she’s not going down for the team—not without plenty of compensation, so get to it brother?

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