In a letter to the House Committee on Oversight and Government Reform yesterday, Lois Lerner’s attorney (veteran DC lawyer William Taylor) informed the committee of her intention to invoke her Fifth Amendment rights at today’s committee hearing. Taylor said that she should not be required to appear at the hearing because to do so would serve “no purpose other than to embarrass or burden her.” COGR required Lerner to appear, but dismissed her after she refused to answer questions, though not before she made an exculpatory statement in which she denied any wrongdoing.
This raises a number of legal questions, which we will proceed to consider.
1. Why can a witness invoke the Fifth Amendment before Congress when the privilege against self-incrimination applies only to criminal cases? With surprisingly little controversy (but see here for an academic view to the contrary), it has long been accepted by Congress and the courts that a congressional witness may invoke the Fifth. The theory is that if a witness were forced to testify in a congressional hearing, that testimony could be used against her in a subsequent criminal case. Note that this theory only holds if in fact the testimony could be used in court.
2. When can the witness invoke the Fifth? The witness must have a reasonable belief that her testimony might be used against her in a criminal prosecution. This does not mean that the witness must believe that she has actually committed a crime or that her truthful testimony would lead to her conviction. It just means that there is some realistic possibility that the witness may be criminally prosecuted for a matter to which her testimony might be relevant. This is a fairly low bar.
3. Can government officials invoke the Fifth before Congress and keep their jobs? Although I personally find it difficult to understand how a government official (particularly a senior official like Lerner) can refuse to testify before Congress, which is constitutionally responsible for overseeing the activities of her agency, it is fairly clear that she cannot be fired for doing so. My view is that at the least the President should be able to fire cabinet officials and others who serve at his pleasure for invoking the Fifth, but even this view was controversial when the issue arose during my tenure on the Hill. In any event, Lerner is a career employee, and my understanding is that she cannot be subjected to adverse employment consequences (unlike a private employee) for invoking her self-incrimination privilege.
4. Does Lerner have a colorable basis for invoking the Fifth? Yes. As mentioned earlier, there is a fairly low bar. The Justice Department has commenced a criminal investigation of the matter, and Lerner has reason to believe that she could be the target of investigation and ultimately of prosecution. In particular, it is conceivable that she could be prosecuted for making false or misleading statements to Congress. For example, this letter that she received from Chairman Darrell Issa and Representative Jim Jordan on May 14, 2013 points to various discrepancies between the facts as Lerner knew them and various statements that she made to Congress.
5. Can Congress require a witness to appear at a public hearing to invoke her Fifth Amendment rights? The short answer to this is yes. However, as we have discussed before (see here and here), the D.C. Bar has opined that a committee staff lawyer may violate the legal ethics rules if he or she participates in calling a witness to appear at a public hearing when the witness has asserted an intent to invoke the Fifth. By claiming that there was no legitimate purpose in requiring his client to appear, Taylor probably intended to suggest that committee lawyers participating in the hearing could run afoul of this legal ethics opinion. Perhaps this is why the committee was willing to excuse Lerner so quickly.
6. Does a witness waive her Fifth Amendment privilege when she voluntarily makes an exculpatory statement at a congressional hearing? You would think so, and apparently Representative Trey Gowdy made just that argument after Lerner made her statement. Unfortunately, witnesses at congressional hearings have been getting away with this for years. For example, when Bernie Ebbers, prior to taking the Fifth at a July 8, 2002 hearing before the House Committee on Financial Services, made an opening statement in which he denied all wrongdoing, a number of members argued that this statement waived the self-incrimination privilege. His lawyer (Reid Weingarten), however, argued that a “brief, non-incriminatory statement” did not waive the privilege. This was (and, as far as I know, still is) a debatable position, but the House has not seen fit to challenge it up to this point.
7. Can Congress require Lerner to testify notwithstanding her invocation of privilege? Yes. Recall that the privilege only prevents testimony that can be used in a criminal trial. By statute (see 18 U.S.C. 6002, 6005), a congressional committee may grant a witness immunity so that her statements may not be used against her; once such immunity is granted, the witness can be compelled before the committee. Initiating the process requires a two-thirds vote of the committee. Although in theory the witness receives only “use immunity” (meaning that she can still be prosecuted so long as her compelled statements are not used), the case law (in the D.C. Circuit at least) makes prosecution nearly impossible.
8. Would Lerner be a good candidate for immunity? Maybe. In part that depends on how likely one thinks it is that she would be prosecuted if immunity is not granted. Based on what is known today, by far the most likely criminal charge against her would relate to misleading Congress. But it would be difficult to prosecute her unless one can point to an unambiguous false statement and prove that she knew it was false when she made it. Even if a case could theoretically be made, one has to consider how likely it would be that the Department of Justice would prosecute her for misleading Congress, particularly on a theory that could ensnare many other senior administration officials.