When Lois Lerner of the Internal Revenue Service invoked her Fifth Amendment right against self-incrimination before a House committee on Wednesday, she did so after making a brief statement.
Those remarks have triggered a debate over whether Lerner waived her Fifth Amendment rights. While case law on the subject is limited and fuzzy, most practitioners agree that Lerner risks being held in contempt.
"She’s gambling here," said Robert Kelner, head of Covington & Burling’s election and political law practice. "By making these partial statements before the committee she has at a minimum taken the risk that the committee would hold her in contempt and that a court would later side with the committee."
Appearing before the House Committee on Oversight and Government Reform, Lerner protested her innocence before invoking the Fifth Amendment, acting upon the advice of her lawyer, William Taylor III, a Zuckerman Spaeder white-collar defense partner in Washington. The hearing was in response to a May 14 report by the U.S. Department of Treasury’s inspector general on the unfair targeting of conservative political groups that applied for tax-exempt status. Lerner heads the IRS exempt organizations office.
"I have not done anything wrong. I have not broken any laws," Lerner said.
Oversight Chairman Darrell Issa (R-Calif.) said during the hearing that, as far as he was concerned, Lerner had waived her Fifth Amendment rights by making that statement. He told several news organizations that he would recall Lerner to testify.
"At this point, I believe you have not asserted your rights, but effectively waived your rights," Issa said. His office did not respond to a request for comment.
Typically, witnesses appearing before a panel hearing would invoke the Fifth Amendment without making a statement. Practitioners agreed that in a trial, witnesses are not allowed to provide partial testimony before invoking their rights.
"You can’t use the Fifth Amendment as a sword and a shield," said Stephen Ryan, head of the government strategies practice at McDermott Will & Emery.
George Washington University Law School professor Orrin Kerr, in a post on The Volokh Conspiracy blog, pointed to the 1999 Supreme Court ruling in Mitchell v. U.S. that a witness "may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details."
Stanley Brand, founding partner of the Brand Law Group, said via email that "the issue will be whether her statements constitute testimony." He continued, "In any event, if she insists on standing on her rights, the only way for the committee to test this is through the congressional contempt process."
The committee would now have to vote to hold Lerner in contempt. Assuming the panel found her in contempt, the full House would have to agree. The matter would then be referred to the U.S. attorney for the District of Columbia, Ronald Machen Jr., who would have the option to take it before the U.S. District Court.
Since precedent on the issue is scarce, most practitioners considered it best to err on the side of caution.
"The real point is that this is a somewhat fuzzy area of the law, which is why generally lawyers take the conservative approach," Kelner said. "I’m sure her counsel gave this careful thought and it may well be the case that she is able to defend the proposition to waive the privilege."
Contact Matthew Huisman at firstname.lastname@example.org.