An IRS official, the Fifth Amendment and a Congress controversy

Do government employees like an Internal Revenue Service official have Fifth Amendment rights when testifying before Congress? That topic is being debated in the House, and may not be quickly answered.


Lois G. Lerner, the head of the IRS tax-exempt organizations office, said in advance of Wednesday’s testimony she would assert her Fifth Amendment privilege and refuse to answer questions from House members during committee hearings about the IRS’s targeting of conservative nonprofit groups.

Lerner then appeared before the committee, read a prepared statement, and said she was invoking her Fifth Amendment rights.

“I have not done anything wrong,” Lerner said in her statement. “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.”

“Because I’m asserting my right not to testify, I know that some people will assume that I’ve done something wrong. I have not,” she said. “One of the basic functions of the Fifth Amendment is to protect innocent individuals, and that is the protection I’m invoking today.”

Representative Trey Gowdy, a Republican from South Carolina, quickly insisted that Lerner had to answer questions from the committee, and pointed to opening remarks by Elijah Cummings, a Democrat from Maryland.

“Mr. Cummings said that we should run this like a courtroom and I agree with him,” said Gowdy, a former federal prosecutor. “She just testified. She just waived her Fifth Amendment right to privilege. You don’t get to tell your side of the story and then not be subjected to cross-examination. That’s not the way it works. She waived her right to Fifth Amendment privilege by issuing an opening statement. She ought to stand here and answer our questions.”

Cummings then made his point.

“With all respect for my good friend Mr. Gowdy, I said I would like to see it run like a federal court,” Cummings said. “Unfortunately, this is not a federal court and she does have a right and I think we have to adhere to that.”

Then, a few hours after the hearing, Committee chairman Darrell Issa told Politico that Lerner lost her Fifth Amendment rights by making her statement–about having the rights.

“When I asked her her questions from the very beginning, I did so so she could assert her rights prior to any statement,” Issa told Politico. “She chose not to do so — so she waived.”

James Duane, a Fifth Amendment expert at Regent University, explained to New York magazine why Lerner was within her rights. (Duane made his comments after the hearing ended and before Issa made his announcement.)

“When [someone is] involuntarily summoned before grand jury or before legislative body, it is well settled that they have a right to make a ‘selective invocation,’ as it’s called, with respect to questions that they think might raise a meaningful risk of incriminating themselves,” Duane said.

He also believes that “even if Ms. Lerner had given answers to a few questions — five, ten, twenty questions — before she decided, ‘That’s where I draw the line, I’m not answering any more questions,’ she would be able to do that as well.”

That theory will now get tested, since Issa indicated he may call Lerner back to testify again, without the ability to cite the Fifth Amendment.

Stan Brand, a former general counsel for the House of Representatives, told Politico that Lerner could have an issue if she waived her rights in prior appearances before Congress.

Prior to Lerner’s appearance, her attorney, William W. Taylor III, wrote to Issa and explained why his client was taking the Fifth Amendment.

Taylor said that prior claims by Issa that Lerner had provided misleading information to Congress on four occasions left his client without another option.

“She has not committed any crime or made any misrepresentation but under the circumstances she has no choice but to take this course,” Taylor said.

And in a statement to the Washington Post, Taylor said his client didn’t waive her Fifth Amendment rights.

“The law is clear that a witness does not waive her Fifth Amendment rights not to testify as to facts by asserting that she is innocent of the wrongdoing with which she is accused,” he wrote in an e-mail to the Post.

An article from USA Today lists people who were government employees or private citizens who’ve been called before Congress and “taken the Fifth.”

Officials from the Justice Department, the Central Intelligence Agency, and the General Services Administration have invoked the Fifth in recent years. Celebrities such as White House gate-crashers Tareq and Michaele Salahi and baseball star Mark McGwire also declined to answer questions before Congress.

The various rights and protections under the Fifth Amendment make it one of the most powerful tools in the Bill of Rights.

In addition to protecting people from incriminating themselves, the Fifth Amendment provides for grand juries; protects people from being tried twice for the same crime; and provides due process under the law.

In 1966, the Supreme Court found, as part of its historic Miranda v. Arizona decision, that the right to protect against self-incriminating testimony existed outside of a courtroom.

“There can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves,” the court said.

A later Supreme Court case, Ohio v. Reiner, stated that the Fifth Amendment “protects the innocent as well as the guilty” and that any information “which would furnish a link in the chain of evidence needed to prosecute the claimant” is valid cause to invoke Fifth Amendment rights.

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