As we move toward the opening of the 116thCongress, there are many ideas for reforming congressional rules and practice. One small but not insignificant change that might be considered relates to an issue that arises from time to time—when does a witness before Congress waive her Fifth Amendment privilege by making a voluntary exculpatory opening statement? We discussed this issue about five years ago in connection with Lois Lerner’s appearance before the House Committee on Oversight and Government Reform (see more here and here).
A 2015 law review article by Jason Kornmehl concludes that while the question is a close one, Lerner likely waived her Fifth Amendment rights “because her opening statement contained not only a general denial of wrongdoing, but also incriminating factual assertions as well as reference to the Inspector General’s ambiguous findings in the audit report on the IRS.” Kornmehl also makes two recommendations for future congressional practice: (1) congressional committees should not require witnesses to appear when it is absolutely certain they will invoke their privilege against self-incrimination and (2) witnesses who might invoke the privilege (e.g., if they are the subject of a parallel criminal investigation) should be advised that an opening statement may be deemed a waiver of the privilege, at least if it goes beyond a general assertion of innocence.
My own view is slightly different. When a witness advises a committee she intends to invoke the Fifth, there are valid reasons why it might nonetheless require her to appear, including the possibilities that she will change her mind or the committee will decide to offer her immunity. While no doubt there are instances when this power is abused, it is not necessarily improper for a committee to decide that a particular witness, particularly an executive branch official, should be required to invoke the privilege publicly.
I do, however, agree that committees should adopt rules and practices that clearly advise witnesses that making an opening statement may be deemed a waiver of the privilege. A witness should be able to state that she is acting on advice of counsel and that no adverse inferences should be drawn from her decision to follow that advice. Beyond that, witnesses and counsel should be advised that the committee will deem an opening statement to constitute a waiver of the privilege.