Category: Fifth Amendment

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Congressional Committees Should Consider Addressing Fifth Amendment Waiver in their Rules

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.

 

 

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The Senate’s Options in the Flynn Matter

Just got back from a trip abroad. Did I miss anything? I thought my law school classmate Jim Comey could fill me in on the latest, but for some reason my emails to him keep bouncing back . . .

I know, I’m hilarious. Ok, let’s take a look at the controversy du jour, namely former National Security Advisor Michael Flynn’s decision to invoke the Fifth Amendment in response to a document subpoena from the Senate Select Committee on Intelligence (SSCI). This has led to a flurry of speculation as to what SSCI or the Senate might do next.

For regular readers of Point of Order, the issues here should be pretty familiar. There is no Fifth Amendment right to refuse to produce documents based on their potentially incriminating content, but under certain circumstances a subpoena recipient can refuse to comply on the ground that the act of producing the documents would itself be testimonial in nature. This “act of production” doctrine applies when the subpoena implicitly compels the recipient to communicate that the responsive documents exist, are authentic and are in the recipient’s possession or control.

The committee’s subpoena requires General Flynn to produce, among other things, “all communications records, including electronic communications records such as e-mail or text messages, written correspondence, and phone records, of communications that took place between June 16, 2015, and 12pm on January 20 2017, to which you and any Russian official or representative of Russian business interests was a party.” Flynn’s lawyers contend that the broad sweep of this request shows that the committee lacks prior knowledge of “whether responsive exist, who may possess them, or where they are located.” Thus, by producing documents Flynn would be testifying regarding the existence and authenticity of these records. Moreover, Flynn’s production of responsive documents would require him to testify implicitly regarding his knowledge of who is a “Russian official or representative of Russian business interests.”

Without having studied the matter in any detail, it strikes me that Flynn seems to have at least a plausible act of production objection here. This does not necessarily mean, however, that he would ultimately prevail in litigation. The act of production doctrine is technical and fact specific, and its contours have yet to be clearly spelled out in the case law. Furthermore, to the extent that Flynn has responsive documents that belong to a collective entity and are not simply his own individual documents, the privilege would be inapplicable. Thus, SSCI might reasonably conclude that Flynn’s objection should be rejected on the merits, in whole or in part, or at least that its validity should be tested in court.

What, then, would the committee’s options be? One possibility would be for the committee and the Senate to hold Flynn in criminal contempt, and refer the contempt citation to the U.S. Attorney for the District of Columbia for presentation to the grand jury pursuant to 2 U.S.C. § 194. This law on its face requires the U.S. Attorney to present the contempt matter to a grand jury, but the executive branch has long taken the position that it may disregard this mandatory language, at least in cases where Congress seeks to obtain information which the president has determined to be protected by executive privilege. An unfortunate precedent set in the last administration extends this position to cases where the U.S. Attorney simply believes Congress’s legal position is wrong, even if no question of executive privilege is presented. As I explained in that case (involving the contempt charge against Lois Lerner): “Essentially the U.S. Attorney’s office is reserving the right to make its own independent judgment about the legitimacy of a congressional contempt citation, even if that means resolving a close legal question in a way that protects a witness in an investigation that could embarrass the administration he serves.” Based on that precedent, the executive could refuse to present the Flynn contempt to a grand jury.

The matter is further complicated by the appointment of a special counsel (it turns out that quite a bit happened while I was gone) to investigate the Russia matter. One would think that the special counsel, Robert Mueller, would exercise jurisdiction over any Flynn contempt referral or, at the least, would have to sign off on how the case was handled. This makes it less likely that the Flynn prosecution would simply be dropped like the Lerner case. On the other hand, it may not make it more likely that SSCI will get the documents it is seeking, particularly in a timely fashion. Mueller’s incentive would be to use the possibility of a Flynn indictment for congressional contempt as leverage to advance the priorities of his own criminal investigation. He may have little interest in helping the committee with its investigation (or may actually prefer that the committee’s investigation be halted so as not to interfere with his own).

SSCI may prefer, therefore, to look to an alternative method of enforcing its subpoena. Under 28 U.S.C. § 1365, a Senate committee can bring a civil enforcement action to enforce a subpoena. Under this mechanism, if a subpoena recipient fails to comply with a subpoena from a Senate committee or subcommittee, the committee reports a contempt resolution to the Senate, which may then adopt a resolution directing the Senate Legal Counsel to bring the enforcement action in federal court. See 2 U.S.C. §§ 288b, 288d.

The Senate rarely uses this civil enforcement method, in part because there is an exemption for subpoenas directed to executive branch officials who assert a governmental privilege or objection. That exemption, however, is inapplicable to Flynn’s case, and thus the Senate is free to use it to obtain a federal court ruling on the validity of his Fifth Amendment objection. One downside to this method of enforcement is that it will take some time (e.g., it almost certainly could not be resolved before 2018). A civil enforcement action the Senate brought last year, however, was resolved relatively quickly, within about 6 months of the action being filed by Senate Legal Counsel. (Here is a good summary, ironically written by Flynn’s counsel, of the court’s decision in that case). There is no way to guarantee that a case against Flynn would proceed that quickly (in fact, it probably wouldn’t), but there is no also reason to believe that a criminal contempt proceeding would move any faster. And civil contempt is generally a better method of resolving good faith legal disputes than is criminal contempt. Thus, all in all, it seems to me that a civil enforcement action would be the better method of enforcement here.

In a saner world, there would be another option that the Senate should seriously consider. Any Senate committee can grant immunity by a two-thirds vote of its members (or the Senate as a whole can grant immunity by a simple majority). Although there is a procedure that must be followed to complete the grant of immunity (see 18 U.S.C. §§ 6002, 6005), ultimately SSCI has the power to overcome Flynn’s Fifth Amendment privilege if a bipartisan supermajority of the committee wishes to do so. Although the committee could grant immunity just for the act of production, under current law the consequences would probably be little different than granting Flynn full testimonial immunity (in either case it would be nearly impossible to prosecute him for crimes related to the subject of the committee’s investigation, though he could still be prosecuted for perjury or contempt were he to fail to fully and truthfully respond to the committee’s inquiries). If one believes that obtaining the full truth regarding the Russia investigation is a matter of the highest national priority, it is worth considering whether getting General Flynn’s documents and testimony is more important than preserving the option of prosecuting him.

As a practical matter, however, the Senate almost certainly will not give this serious consideration. The special counsel, whose mission is focused solely on criminal enforcement, would vigorously object to the Senate granting immunity to Flynn. Senators would not want to be seen as responsible for letting Flynn escape criminal punishment, even if this means that SSCI’s investigation is substantially slowed or halted. One of the unfortunate consequences of appointing a special counsel in these circumstances (not the only one, to be sure) is that the public’s interest in a full and expeditious investigation of the Russia matter will take a back seat to the needs and inclinations of the special counsel and the criminal justice system.

So with regard to General Flynn’s refusal to comply with SSCI’s document subpoena, it is likely to be a civil enforcement action or nothing.

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Pagliano’s Contumacious Failure to Appear

Last night the House Committee on Oversight and Government Reform (COGR) voted to approve a contempt resolution for Bryan Pagliano, who failed to appear before the committee in response to a subpoena to testify. Pagliano, you may recall, is the IT specialist who was in charge of setting up Secretary of State Clinton’s private email server. Pagliano previously asserted his Fifth Amendment privilege against self-incrimination in both congressional and Justice Department/FBI investigations. He was given use immunity by DOJ/FBI to provide information regarding their investigation into whether the use of the email server by Clinton or others violated laws against the disclosure or mishandling of classified information.

Although the criminal investigation into Clinton’s handling of classified information terminated with FBI Director Comey’s public statement a couple of months ago, COGR says it is continuing to investigate this issue as well as other matters that the FBI investigation did not address. Specifically, the contempt report indicates that COGR’s ongoing investigation includes:

(1) seeking information about former Secretary Hillary Clinton’s use of a private, non-secure email server during her time at the Department of State, as well as the transmittal of classified national security information on that server; (2) examining the circumstances that resulted in the failure to preserve federal records arising during Secretary Clinton’s tenure, as required by the Federal Records Act, and to produce such records pursuant to Congressional requests or request made pursuant to the Freedom of Information and; (3) determining what, if any, changes to the Federal Records Act of 1950, Freedom of Information Act of 1966, Ethics in Government Act of 1978, or any other federal law(s) may be necessary to prevent these or similar circumstances from recurring.

No one, I think, would seriously dispute that these are proper matters for the committee to investigate, nor that Pagliano is a witness with information relevant to them.

Instead, the question is whether Pagliano, having informed COGR through his attorney that he will continue to assert his Fifth Amendment privilege with respect to any questions that the committee asks him about these issues, was required to appear at a hearing to assert the privilege in person. Citing legal ethics opinions, Pagliano’s attorneys at Akin Gump contend that Pagliano is not required to appear at an open hearing, although they said that he was willing to appear at a closed session. Backed by committee Democrats, they argue that requiring Pagliano to appear “in front of video cameras six weeks before the presidential election, betrays a naked political agenda and furthers no valid legislative aim.”

This is not a new issue. Congressional committees have been faced with such objections for decades, at least since a 1977 DC Bar opinion that an attorney serving as counsel to a congressional committee was prohibited by the disciplinary rules from requiring a witness to appear at televised hearings when the committee had been notified in advance that the witness would refuse to answer questions based on the Fifth Amendment right against self-incrimination.

Continue reading “Pagliano’s Contumacious Failure to Appear”

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Martin Shkreli’s Contempt for Congress

I have never seen anything like the deportment of this witness, who smirked and made various faces while taking the Fifth before the House Committee on Oversight and Government Reform. At least his lawyer did not allow him to make an opening statement. Instead, the lawyer gave an impromptu press conference afterwards, in which he made various exculpatory claims on his client’s behalf and claimed (ludicrously) that his client’s demeanor was not intended to show any disrespect for the committee.

 Update: apparently this conduct shouldn’t have been unexpected.

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Why Wouldn’t Congress Give Pagliano Immunity?

Bryan Pagliano, a former State Department staffer who helped to set up Hillary Clinton’s private e-mail server, has informed several congressional committees, including the House Select Committee on Benghazi and the Senate Judiciary Committee, that he will invoke the Fifth Amendment privilege against self-incrimination if forced to appear before those committees to answer questions about that subject. Pagliano’s attorney cited “the ongoing FBI inquiry into the security of Clinton’s e-mail system” as the basis for his fear of possible incrimination.

In connection with the Lois Lerner matter, we have discussed the various legal issues related to a former government official’s invocation of the Fifth Amendment before Congress. One of the possible responses to such invocation is for the congressional committee to grant the witness immunity, thereby preventing his congressional testimony from being used against him in a future prosecution. Once such immunity is granted, the witness no longer has the legal right to refuse to answer questions before the committee based on the Fifth Amendment.

In theory, the immunity granted extends only to the actual use of the congressional testimony, but in practice it becomes nearly impossible to prosecute the congressional witness for any crime related to the subject of that testimony. Thus, if the committee believes that the witness may truly face the possibility of prosecution, it may be reluctant to grant immunity. This is one of the primary reasons that congressional grants of immunity are fairly rare (the last one given was to Monica Goodling in 2007 by the House Judiciary Committee).

With respect to Pagliano, however, this would hardly seem to be a serious issue. Unlike Lerner, he is not a senior or central figure in the investigation. The chances of his facing any kind of criminal jeopardy for setting up a private e-mail server (which by definition had to have occurred before any classified e-mails were sent through that server) would seem extremely remote.

In any event, the process of granting immunity allows the executive branch, in the person of the Attorney General, to express any concerns about the grant of immunity that it may have. The congressional committee must notify the Attorney General of its intent to seek the immunity order and thus the Attorney General has the opportunity to inform the committee of any objections to the grant of immunity. However, while the Attorney General has the power to delay the grant of immunity by up to 20 days, see 18 U.S.C. § 6005 (c), she has no power to veto or ultimately stop it from being granted. See Application of U.S. Senate Sel. Comm. on Pres. Campaign Activities, 361 F.Supp. 1270, 1276 (D.D.C. 1973).

Applying for immunity requires a vote of either two-thirds of the congressional committee or a majority of the full House or Senate. Thus, while the Attorney General cannot stop the grant of immunity, the committee minority can at least force the matter to full body if it objects to the grant. In the circumstances of this case, it seems to me it would be difficult to make a credible argument as to why Pagliano shouldn’t receive immunity. But the process gives everyone an ample opportunity to express their views.

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The U.S. Attorney’s Troubling Decision in the Lois Lerner Case

Here is a link to US Attorney Ronald Machen’s letter to Speaker Boehner declining to submit the Lois Lerner contempt to the grand jury. Machen makes three points in this letter. First, he rejects the argument that the Committee on Oversight and Government Reform failed to follow proper procedures in notifying Lerner that her Fifth Amendment privilege claim had been overruled. Instead, he agrees with the COGR majority that “Ms. Lerner was given notice that her claim of privilege had been rejected and sufficient opportunity to answer the Committee’s questions after receiving that notice,” and he points out that the three Supreme Court cases relied on by Lerner’s defense (and the COGR minority) are clearly distinguishable. This conclusion is in accord with my views. See Can Lois Lerner Skate on a Technicality?

Second, Machen contends, contrary to the COGR majority, that Lerner did not waive her Fifth Amendment privilege. He concludes because Lerner only made general assertions of innocence “lacking substantive content,” her exculpatory opening statement did not constitute a waiver of the privilege. He relies primarily on two court of appeals decisions and one D.C. district court decision, all from the 1950s and none representing controlling precedent in his jurisdiction.

Moreover, it is not clear that these cases would dictate a finding in Lerner’s favor if followed. For example, even the parenthetical Machen uses for one of the cases, Ballantyne v. United States, 237 F.2d 657 (5th Cir. 1956), suggests that it is distinguishable. Ballantyne says that “the United States Attorney could not, by thus skillfully securing from appellant a general claim of innocence, preclude him from thereafter relying upon his constitutional privilege when confronted with specific withdrawals.” But the whole point of the Lerner waiver is that no one elicited her claim of innocence, skillfully or otherwise; her opening statement was entirely voluntary. Manchen obliquely acknowledges this point, but offers little more than the bare assertion that it is “doubtful” this would be sufficient to support a waiver.

This is not to say that Machen’s conclusion on waiver is unreasonable. As I have said, this is a close legal question, and reasonable people can disagree on the outcome. The issue is whether the decision should be made by the U.S. Attorney or by a court.

This brings us to Machen’s third point. Notwithstanding the apparently clear language of the statute requiring that a congressional contempt be presented to a grand jury (see, for example, then-Speaker Pelosi’s position in the Miers case), Machen contends that the decision is within his discretion. He further maintains that under DOJ policies that it is not proper to bring the matter before a grand jury unless he is convinced that Lerner’s privilege claim is invalid. Machen’s position here conflicts with both statutory text and congressional intent, IMHO, although I am not particularly surprised that he has taken this stance.

Essentially the U.S. Attorney’s office is reserving the right to make its own independent judgment about the legitimacy of a congressional contempt citation, even if that means resolving a close legal question in a way that protects a witness in an investigation that could embarrass the administration he serves. It is another in a long line of examples demonstrating Congress’s institutional weakness in controlling the executive.

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House Counsel on the Lerner Contempt

The House Counsel has issued this memorandum addressing the argument that Lois Lerner cannot be held in contempt because the Committee on Government Oversight and Reform failed to follow the proper procedures in overruling her objections. The memo provides additional factual detail regarding the committee’s actions and communications with Lerner and her counsel. House Counsel states that “the factual record overwhelmingly supports the conclusion that Ms. Lerner would ‘ha[ve] no cause to complain’ if she were to be indicted and prosecuted under 2 U.S.C. § 192 because she was ‘not forced to guess the [C]ommittee’s ruling’ on her Fifth Amendment claim.” Memorandum at 12. Thus, “we think it highly unlikely a district court would dismiss a section 192 indictment of Ms. Lerner on the ground that she was insufficiently apprised that the Committee demanded her answers to its questions, notwithstanding her Fifth Amendment objection.” Id. at 15.

House Counsel also points out that there is no reason at all to believe that the alleged infirmities in the committee’s procedures would have any bearing on a civil enforcement action. Id. at 18-19.

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Can Lois Lerner Skate on a Technicality?

Updated: Mort Rosenberg’s response follows

On a snowy day, what could be better than snuggling up with some 1950s Supreme Court cases and getting deep into the technicalities of congressional contempt procedure? If your answer is “just about anything,” you would not have enjoyed John Filamor’s going-away party.

As it happens, I had a reason for doing this. My friend and congressional legal expert extraordinaire Mort Rosenberg, with some assistance from former House Counsel Stan Brand, wrote this memo last week to Elijah Cummings, ranking member of the House Committee on Oversight and Government Reform (COGR). The memo concludes, based on Supreme Court precedent, that Lois Lerner cannot be held in contempt for her refusal to answer questions at a recent COGR hearing, explaining that “at no stage in this proceeding did the witness receive the clear rejections of her constitutional objections and direct demand for answers nor was it made unequivocally certain that her failure to respond would result in a criminal contempt prosecution.”

For the reasons set forth below, I don’t think the Supreme Court cases relied on by Rosenberg and Brand support their conclusion. It is unlikely, in my opinion, that Lerner could escape criminal conviction on the grounds set forth in their memo. Moreover, as far as I can tell there is no basis for the suggestion that Lerner would be able to successfully defend a civil suit on this basis.

Perhaps more importantly, I do not think it appropriate for Representative Cummings to endorse this position. Lerner has skilled defense counsel who is more than capable of deciding whether it is in her interest to raise this hyper-technical defense should she be charged with criminal contempt. There are legitimate institutional reasons why Cummings might object to holding Lerner in contempt, but this is not one of them.

Continue reading “Can Lois Lerner Skate on a Technicality?”

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Lois Lerner and Waiver of Fifth Amendment Privilege

Everybody is talking about whether Lois Lerner waived her Fifth Amendment privilege by making an exculpatory opening statement at yesterday’s hearing of the House Committee on Oversight and Government Reform (eg, these posts at Hot Air and the Volokh Conspiracy). As Juliet Eilperin notes, “[l]ike a lot of legal questions, it depends on whom you ask.”

It also depends on how you approach the question. Chairman Issa has indicated that he is consulting with counsel, and counsel (presumably the House Counsel’s office) will give him an answer based on reading the case law and advising on how the courts would likely react to the waiver issue if the committee and the House were to hold Lerner in contempt for refusing to answer questions. As I mentioned yesterday, this issue arose when I was at the House Counsel’s office in 2002 after Bernie Ebbers, the former CEO of WorldCom, made an exculpatory opening statement before taking the Fifth at a House hearing.

At the time, Ebbers’ lawyer (Reid Weingarten) argued that there was no waiver because Ebbers had made an exculpatory statement, but had not testified to any incriminating fact. He relied on cases where witnesses in judicial proceedings had been held not to waive the privilege when they answered questions but had not provided an incriminating response. There is, however, a strong argument that these cases are distinguishable because they involve witnesses who were compelled to answer questions and had no right to refuse to answer unless their responses would in fact incriminate them. They might apply to a congressional witness who answered preliminary questions before taking the Fifth, but they arguably do not apply to a congressional witness who voluntarily makes an opening statement. The latter situation (again, arguably) would be controlled by the principle 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.” Mitchell v. United States, 526 U.S. 314, 321 (1999).

For present purposes, let’s assume that the House Counsel advises Issa that it is likely (not certain) that the courts would hold that Lerner had waived her self-incrimination privilege under the facts presented. Let’s further assume that the law has not changed materially since 2002. Finally, let’s assume that there have been at least a few other congressional witnesses since then who have pulled similar stunts, but the House has not previously held any of them in contempt.

Under these circumstances, COGR could move forward with holding Lerner in contempt, but I would argue that it would be unwise to do so from the perspective of the House’s institutional interest. Instead, I would encourage the committee to declare prospectively that witnesses who make voluntary opening statements will be presumptively considered to have waived their privilege against self-incrimination with respect to questions within the subject matter of those statements (i.e., questions that would be within the scope of cross examination of an opening statement).

It is undoubtedly in the House’s institutional interest to discourage witnesses from making a self-serving opening statement and then refusing to answer a committee’s questions about it. On the other hand, it is also in the House’s institutional interest to turn square corners and maximize the chances that its legal position will be upheld in court. If COGR holds Lerner in contempt for the same conduct that Ebbers and other congressional witnesses have been allowed to get away with, its action will be tainted by the perception of unfairness and selective enforcement, and a court will be more likely to find that no waiver occurred. By contrast, if the committee puts witnesses clearly on notice that voluntary opening statements will be deemed to waive the privilege, any future enforcement action is far more likely to be successful.

Consistent with this position, Chairman Issa and Ranking Member Elijah Cummings could write to Lerner’s attorney and give him an opportunity to formally withdraw her opening statement. If he refuses to do so, it would be appropriate for the committee to move forward with contempt.

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Taking the Fifth Before Congress

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.