Congressman Proposes Bill To Make Asserting Constitutional Rights A Fireable Offense?

One Congressman apparently thinks that asserting your Constitutional rights should be grounds for losing a government job.

bill-of-rights

Last month you will recall, IRS employee Lois Lerner exercised her right to remain silent under the Fifth Amendment rather than answer questions regarding the ongoing IRS political targeting scandal from the House Government Oversight Committee. The usual controversies erupted when this happened, including the argument that she had actually waived her Fifth Amendment rights by making an opening statement, an argument that doesn’t seem to have legal merit. Other commentators objected to the idea that a government employee could refuse to answer questions from Congress under any circumstances, an odd position that seems to suggest that one waives ones Constitutional rights by accepting government employment. Now, one Republican Member of Congress is proposing a bill to address this supposed problem:

Rep. Mo Brooks (R-Ala.) on Thursday proposed legislation that would require federal workers to be fired if they don’t answer questions from Congress.

The bill is a reaction to Lois Lerner, the IRS official who refused to answer questions about the IRS’s targeting of conservative groups during a congressional hearing last month. Lerner told the House Oversight and Government Reform Committee, “I have not done anything wrong,” then invoked her Fifth Amendment right against self-incrimination on the advice of her lawyers.

Lerner was asked to leave the hearing, but she left Republicans fuming and prompted calls for her resignation and the resignation of any official who refuses to answer questions from Congress. She is now on paid administrative leave.

“This is a statement which should not be made by federally appointed officials before a congressional hearing if they are faithfully carrying out the duties of their office,” Brooks told The Hill on Friday of Lerner’s decision to plead the Fifth.

“That is why I am introducing H.R. 2458, which would terminate the employment of any federal employee who refuses to answer questions before a congressional hearing or lies before a congressional hearing,” he said. “This legislation is constitutional and necessary to enable Congress to provide proper oversight for the American people.”

The bill [PDF] contains several parts, but only two that address the Fifth Amendment issue. First, there’s this:

Any Federal employee who refuses to answer questions in a congressional hearing after being granted immunity shall be terminated from employment.

On some level, this part of the legislation is almost completely useless. Anyone, Federal Government employee or not, who refuses to testify after being subpoenaed and being given a legally sufficient grant of testimony immunity would be in Contempt of Congress, and potentially subject to both immediate arrest for that Contempt and prosecution under Federal Law. While I can’t say I’m aware what impact being in Contempt of Congress might be on the employment of someone under the Federal Civil Service system, but I can’t imagine it would be very good. For that reason, I’d say that this part of the proposed legislation is relatively  innocuous.

The same seems to be true of Section Two of the bill:

Any Federal employee who, in a congressional hearing, refuses to answer questions specifically, directly, and narrowly relating to the official duties of such employee, without being required to waive immunity with respect to the use of answers or the fruits thereof in a criminal prosecution of such employee, shall be terminated from employment

As I read this section, it also posits a situation where a Federal employee is granted immunity by Congress. If that’s the intent,  then the comments I made above would apply to this section as well. However, this particular section is phrased differently than the first for unknown reasons and could also conceivably be read to say that a Federal Employee could be compelled to testify regarding “questions specifically, directly, and narrowly relating to the official duties of such employee,” a term that is far more open ended than it actually seems at first glance when you realize that it is in the context of a Congressional hearing where many of the people asking questions are not attorneys and there is no Judge to decide on the propriety of a given question. If that’s the intent of this particular section, then the Constitutional provisions of the law would seem to be blindingly obvious. Essentially, such a law would be saying that one of the conditions of your employment as a Federal Employee is that you must waive your Constitutional rights. Quite honestly, I cannot imagine any Federal Court ever allowing such a law to stand.

Jazz Shaw is more sympathetic to Brooks’ effort:

I know some of the usual list of suspects will claim that this is just another way to deprive somebody of their constitutional rights, but I can’t see how this applies here. We’re not talking about prosecuting somebody in court, but rather terminating their employment for failure to fulfill their duties. And as a reminder, Lerner is still sitting home collecting a full, fat paycheck on your dime

The question I would ask in response to a comment like this is, how far are you willing to take this principle? If it’s acceptable for the Federal Government to terminate someone because they exercise their Constitutional rights under the Fifth Amendment, would it also be acceptable to fire a Federal Employee for exercising their rights under the First Amendment? How about the Second? Where does it stop?

As I’ve said before, there is very simply solution to whatever problem Congressional Republicans believe is created by the fact that Lois Lerner is exercising the rights that all of us are guaranteed by the Constitution. Grant her immunity and bring her back before the committee. Of course, that would deny Congressmen like Brooks the opportunity to score political points by proposing legislation that, depending on how it’s read, is either completely pointless or incredibly dangerous.

FILED UNDER: Congress, Law and the Courts, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. legion says:

    It never ceases to amaze me that these are the f*cktards whose job – whose only job – is to _make_ laws. And they have such pathetic grasp of the concepts involved that they can still put their names to obscenities like this.

  2. JWH says:

    Would this apply to GS and SES employees? Or to political appointees?

  3. al-Ameda says:

    Perhaps it’s time for another round of “Was the American Civil War Worth It?”

    Seriously, the Republican Party is on a roll – comedians never had it so good.

  4. stonetools says:

    November 2014 can’t get here soon enough. We have millions of people unemployed, crumbling infrastructure, a need for immigration reform, etc, and this is what House Republicans are wasting their time on? Then is the Texas anti-abortion law debacle in Texas. Seriously, Republican Party delenda est .

  5. Caj says:

    This coming from a Republican! No surprise there. Those people just get more stupid by the minute. Next subject…..!

  6. Gustopher says:

    Pass this law, and then subpoena Obama to answer questions about Benghazi, Flag Pins, Kenya… At least go after the Secretary of State and the rest of the cabinet — they are all federal employees, after all.

  7. michael reynolds says:

    Incidentally, the IRS “scandal” fall down go boom. Seems they weren’t just targeting Tea Party groups.

    So, let’s see. That’s the Benghazi “scandal” that went nowhere, the AP/Rosen “scandal,” which kind of went poof, the IRS “scandal” imploding at a theater near you, and finally the NSA/PRISM “scandal” which the GOP can’t really talk about and which causes the American people to shrug in outrage.

    None of them quite rose to the level of delivering cakes and selling arms to the Iranians after the Iranians were implicated in the un-avenged killing of 241 Marines, and then using the proceeds of those sales of arms to terrorists to finance South American death squads.

    Just more proof that Reagan was much better than Obama.

    The Obama scandals: nothing, nothing, nothing and then more nothing. But thanks for playing.

  8. Woody says:

    So sayeth the Party which never, ever ceases to proclaim itself the True Defender of the Constitution.

    I wonder what the Congressman thinks about Federal contractors/their employees, and their Constitutional rights.

  9. michael reynolds says:

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  10. anjin-san says:

    @ michael reynolds

    Sasha’s Lunch MoneyGate is going to bring Obama down for sure…

  11. Jenos Idanian says:

    This is nuts.

    I am trying to think of a job where one, when asked by one’s boss what you did while on the clock and in the line of duty and while acting as a representative of one’s employer, one can refuse to answer and NOT get your ass fired.

    OK, maybe spy. But even then…

    Part of Lerner’s job is to cooperate with Congressional inquiries into her job functions and actions. Especially since Congress is the body that pays her paycheck and writes the rules she is supposed to enforce.

    That is exactly what she was asked — just how did she carry out her job. And she refused to answer.

    This is a case of a principle that is blindingly obvious in the private sector being belatedly applied to the public sector. If my boss (or some other corporate entity above me) calls me in and asks me about what I did while on the clock and I refuse to answer, I deserve to be fired on the spot.

    The 5th Amendment says that she can’t be compelled to testify or give evidence against herself. It does NOT say that federal employees can, essentially, follow George Carlin’s advice and tell them “F you! It’s MY job, I’ll do it MY way!”

  12. michael reynolds says:

    @Jenos Idanian:

    You’re right, federal employees should not have Constitutional Rights. Let’s take their guns and forcibly convert them to Scientology.

  13. Jenos Idanian says:

    @michael reynolds: Listen, Jerkula. We aren’t talking about a court hearing. We’re talking here about asking a federal employee what they did while on the clock, in the furtherance of their duties. If they can’t account for their actions that they took in our names, carrying out our laws, then they NEED to have their ass fired and replaced with someone who will do the job.

  14. michael reynolds says:

    @Jenos Idanian:

    Hah, I knew the gun reference would fry your little brain.

    You cannot force people to incriminate themselves just because they are federal employees. Just like we can’t force them to not read newspapers. Federal employment does not make you a non-citizen.

  15. Jenos Idanian says:

    @michael reynolds: Actually, I blipped right over the gun reference as a non sequitur that didn’t need answering.

    Here’s a question for you: you’re a town selectman. In a serious criminal trial, the arresting officer, under cross examination about the arrest, pleads the fifth. Would you expect your chief of police to fire that officer immediately? Or would you tell the chief that he must respect the officer’s rights, even if it totally screws the case and puts the value of having that officer on the force, knowing that, at any time, he can refuse to do one of the more fundamental aspects of his job without fear of consequences?

    And we’re not talking about legally punishing Lerner here. There’s no Constitutional right to hold a federal job. Especially when you refuse to carry out some of the most fundamental parts of that job.

    It’s simple. She can tell Congress about how she carried out her job, or she can forfeit that job.

    I now truly believe that you’re a professional author. Your self-employment really shines through. You don’t have to answer to a boss about what you did while you were on the clock, representing your employer, and carrying out your duties. That, and it being one of the few jobs that wouldn’t tie you down to a specific location.

    Sadly for her, Ms. Lerner isn’t self-employed. So her attitude won’t wash.

  16. michael reynolds says:

    @Jenos Idanian:

    You cannot punish people for exercising their constitutional rights.

    Can we fire people for attending the church of their choice? Can we fire people for reading a book or magazine? Do you think any employer can fire an employee for possessing a legal firearm Seriously, do you think employers can fire you for voting? Or demanding that a police officer show a warrant? What country do you live in?

  17. HarvardLaw92 says:

    @michael reynolds:

    You cannot punish people for exercising their constitutional rights.

    Not so fast. While there are constitutionally protected bases on which one can’t be denied employment (race, among others), nothing in the Constitution protects you from the consequences of deciding to exercise a right.

    For example, Person A has a constitutionally protected right to be a member of the Ku Klux Klan, and to publicly articulate a patently racist set of ideas. For that matter, Person B has a constitutionally protected right to appear in a pornographic film. Both actions would be highly embarrassing to their employers.

    Their employers would be entirely within their rights to terminate their employment under the doctrine of at-will employment. Absent a contract, there is no constitutionally protected right to keep a job under all circumstances. The law does not mandate having cause as a necessary element for the termination of employment.

  18. Gromitt Gunn says:

    @Jenos Idanian:

    We aren’t talking about a court hearing.

    Yeah, we pretty much are. Congressional committees have supoena power, can hold you in contempt, and you can be charged with perjury. From the perspective of the individual testifying, and their constitutional rights, there’s little difference.

  19. anjin-san says:

    One gets the feeling that Jenos has plenty of time groveling before his bosses.

  20. anjin-san says:

    I now truly believe that you’re a professional author.

    Umm. Dufnoid? That has never really been in doubt.

  21. Jenos Idanian says:

    @michael reynolds: You cannot punish people for exercising their constitutional rights.

    Oh, yes you can. Let’s toss in a few more examples. Can a teacher be fired for wearing a T-Shirt that says “F Authority?” How about a nurse who insists on carrying her gun with her?

    Lerner shouldn’t be fired for exercising her Constitutional rights. She should be fired for refusing to do her job. The 5th Amendment means she can’t be prosecuted for it, but she can — and should — have her ass fired for failure to do her job.

  22. JKB says:

    I’m not sure what all the drama is about. Police departments have long had a policy of terminating officers who refused to cooperate with internal (administrative) investigations. On the other hand, those investigations are suspended if there becomes a suspicion of criminally prosecutable offenses to be picked back up after the separate, criminal investigation. The statements given in the administrative investigation can’t be used against the officer in the criminal investigation.

    Of course, things get sticky when someone has been compelled to testify on TV to give a forum for Congressional pontifications.

  23. OzarkHillbilly says:

    @stonetools: November 2014 2020 can’t get here soon enough.

    FTFY. To be honest tho, the next round of redistricting probably won’t help much and definitely won’t change a dam thing here in Misery.

  24. I’m finding the hypocrisy from a number of commenters almost amusing. We have people who a while back were arguing that the government has the right to apply criminal penalties to private citizens who refuse to answer census questions of any nature because the government’s need for information is so important. We have people who just last week were arguing that the government should be allowed nearly unlimited scope to monitor the communications of private citizens because preventing criminal behavior is so important.

    But suddenly someone suggest government employees can be fired if they refuse to answer questions about their on the job behavior and suddenly everyone’s a civil libertarian.

    Once again, the proper relationship between government and society is turned on it’s head. The citizens have no expectation to privacy from government intrusion into any aspect of their life, while government officials are cloaked in secrecy that allows them to act entirely out of the control of the voting public.

  25. Jenos Idanian says:

    @Stormy Dragon: Stormy… is that really you?

    I’m sure you’re as uncomfortable about hearing this as I am in saying it, but… welcome to the right side of the issue, and very well said.

  26. Barry says:

    Doug: “However, this particular section is phrased differently than the first for unknown reasons…”

    My reading of it (IANAL) is that it doesn’t mention being granted immunity, so refusing to answer questions would lead to firing.

  27. Barry says:

    @Stormy Dragon: “We have people who a while back were arguing that the government has the right to apply criminal penalties to private citizens who refuse to answer census questions of any nature because the government’s need for information is so important. ”

    Please note that the Census is enshrined in the Constitution, and therefore questioning it is probably Treason.

  28. Jenos Idanian says:

    @Barry: Please note that the Census is enshrined in the Constitution, and therefore questioning it is probably Treason.

    So’s the Right To Keep And Bear Arms, but that don’t mean much to a lot of people around here.

    However, “have and hold a federal job” is NOT enshrined in the Constitution, just to haul it back on topic.

  29. rudderpedals says:

    What’s the problem with allowing the civil service system to deal with discipline? If you think Lerner should be punished you ought to prefer it through an objective process. The reason we have a civil service and rules pertaining to it is to insulate our civil servants from precisely this sort of partisian abuse.

    @Barry: IAAL (but IANYL). I believe you’re correct: The second section states that the employee’s out even if not immunized. Both sections are designed to apply to Ms. Lerner.

  30. @rudderpedals:

    How are those civil service processes supposed to work if everyone can just refuse to respond to the inquiry “silent blue wall” style?

  31. fred says:

    When you work for the government you take an oath. If you can’t keep it you should not take the job. How does a unqualified contractor like Snowden get a top secret clearance in less that 3 months. Investigate that Issa and also apologise to the IRS employees who we now know were just doing their jobs and evaluating applications for tax exemptions from groups left and right. No Rep Issa does not have the integrity to do so. This proposal goes too far but at least there is one rep who recognizes that working for the federal government is a privilege and carries major responsibilities.

  32. Rob in CT says:

    Yeah, I’m not so sure I like the idea of this particular law, but at the same time if a civil servant goes before congress and takes the 5th, I’m also not comfortable with the idea that said civil servant should face zero consequences.

    Civil servants should retain the right to take the 5th, of course! They can avoid incriminating themselves. However, it does not therefore follow that their jobs should remain secure if they invoke that right in the course of a congressional investigation. I don’t really want a blanket rule on this, but I am also suspicious of the potential for closing ranks (think about the policy blue wall of silence).

  33. rudderpedals says:

    @Stormy Dragon: I don’t know, but I’m close to certain there are regs and precedence and that it’s not an issue of first impression for the service.

  34. Sam Malone says:

    Neglecting the Jenos sideshow…

    In order to believe in, and support, today’s Republican party you have to be dumb.
    Nothing they do or say is grounded in the real world.
    The examples are unending…
    from Ryan voting to slash food stamps and then saying he is focused on poverty…
    http://nymag.com/daily/intelligencer/2013/06/paul-ryan-focusing-more-on-hurting-the-poor.html
    to the lady in Texas who thinks rape kits prevent pregnancy…
    http://blog.beaumontenterprise.com/bayou/2013/06/24/texas-state-representative-rape-kits-prevent-pregnancy/
    to the Fiscal Hawks voting a $30 billion dollar give-away on Border Security.
    http://www.washingtonpost.com/blogs/post-politics/wp/2013/06/20/senators-reach-deal-on-border-security-proposals/?wpisrc=nl_pmpol
    It’s all just a fantasy world of their own creation.

    Which, of course, explains the Jenos side-show.

  35. Sam Malone says:

    @ Rob…

    “…I’m also not comfortable with the idea that said civil servant should face zero consequences…”

    In a perfect world…I agree.
    The problem is that you have douche-bags like Darrell Issa…who would f’ over his own mother to make a non-existent political point.
    When you have a-holes like that you need protection from a-holes like that.

  36. Caj says:

    All those Republicans in Congress moaning how bad the government is make me sick! If government is SO bad why do they even want a job in such a bad, wicked, awful place. They don’t mind the perks, and good salaries, plus great health care the job provides do they? Republicans just don’t want anyone else getting anything. Typical of them. Me, myself and I.
    That sums that party up in a nutshell!

  37. Jenos Idanian says:

    @Sam Malone: I’m actually talking about the topic, while you throw up a whole bunch of unrelated crap and say I’m starting a sideshow?

    And why don’t you just come out and say what you believe — that the laws don’t apply when they’re being enforced by evil Rethuglicans against fine, noble Democrats. That’s your message here.

  38. Jenos Idanian says:

    @Sam Malone: I’m actually talking about the topic, while you throw up a whole bunch of unrelated crap and say I’m starting a sideshow?

    And why don’t you just come out and say what you believe — that the laws don’t apply when they’re being enforced by evil Republicans against fine, noble Democrats. That’s your message here.

  39. @Jenos Idanian:

    However, “have and hold a federal job” is NOT enshrined in the Constitution, just to haul it back on topic.

    Oh, really? There certainly is when it comes to religion: “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

  40. Jack says:

    @Barry: The counting of the population is in the constitution. Nothing is in the constitution about race, age, gender, whether you rent or own, how much you make or how far you drive to work. All of these questions were in the 2010 census and the .gov cannot force anyone under penalty of law to answer those questions.

  41. Jenos Idanian says:

    @Timothy Watson: Not quite the same, Tim. the issue here is directly related to her job performance — or, more accurately, refusal to perform her job.

    Unless she is claiming that she is required by her faith to discriminate against conservatives, your example simply doesn’t apply.

  42. @Jenos Idanian: Here’s hoping that Obama fires everyone in the Executive Branch that cut a check to any Republican candidate. I wonder what your response to that would be?

    @Jack: You mean some of the same information collected since 1790, and even more so since 1850?

  43. Jack says:

    Essentially what Lerner said was “You can ask me about what I do/did, but I don’t have to answer you or prove there was no wrong doing.” In what world can an employee tell the employer, f&$k off, don’t ask me what I do/did and not get fired? The people are responsible to the people and the people’s representatives. If they are unwilling to say under oath what it is they did while performing their job, then they should be fired.

    This isn’t about firing someone for exercising a right, it’s about firing someone for thier unwillingness to open up their work to the light of day. What they want to do is cloak their job in secrecy to the point they are held accountable to no one.

  44. Jack says:

    @Timothy Watson: So because they did it back then it means it was constitutional? Just because they asked it doesn’t mean you HAVE to answer. I didn’t, please .gov, come and prosecute me, I’ll hold my breath waiting.

  45. Sam Malone says:

    Again…Darrell Issa is a partisan hack on a witch-hunt.
    If held to the same standard he wants to hold others he would be in jail.
    No way anyone should be forced to participate…at the risk of their job…in this political theater.

  46. Jenos Idanian says:

    @Timothy Watson: Here’s hoping that Obama fires everyone in the Executive Branch that cut a check to any Republican candidate. I wonder what your response to that would be?

    My suggestion would be to take careful note of just how Obama carried it out, then when we have another Republican president, he or she does the same thing to Democrats.

    Consider the IRS. 2/3 of all employees who donated to presidential campaigns in 2012 gave to Obama, and 96% of their union’s contributions since 2008 have gone towards Democrats. I see a very, very, very thorough house-cleaning in that event.

    Your proposal reminds me of the idiots who want to declare war on gun owners. You sure you want to have a bunch of people terrified of guns go after people who have lots of guns, and tend to be very proficient at their use?

  47. David in KC says:

    As long as you are subject to criminal penalties, you can invoke the fifth. If she was given immunity to criminal prosecution, then she would have had to testify. The difference between a regular employer and the Feds is that the Feds can send you to jail. If you want this o be. Pure employee/employer situation, grant the damn immunity.

  48. Sam Malone says:

    “…Your proposal reminds me of the idiots who want to declare war on gun owners. You sure you want to have a bunch of people terrified of guns go after people who have lots of guns, and tend to be very proficient at their use?…”

    There you go making stuff up again.
    If your opinions are based on bullshit…then your opinions are bullshit.

  49. Sam Malone says:

    Is anyone suprised Jenos wants to return to the 1800’s when cronyism and political influence ran rampant in the Civil Service.
    Hacks like Darrel Issa and his partisan witch-hunts were common then.
    That’s the world Jenos lives in.

  50. Jenos Idanian says:

    @Sam Malone: Sam/Cliffy/Diane/Coach/Whoever…

    Sometimes the best way to show how stupid something is is to rub the speaker’s nose in it. I didn’t propose the return to the spoils system, I just showed that it would hurt Tim’s side far worse.

    But we aren’t talking about a complete reform of the Civil Service system… at least, not yet. We’re talking about whether an employee has the right to refuse to do part of their job and keep that job.

    For some reason, that bit of common sense seems controversial…

  51. Gromitt Gunn says:

    @Jack: So because they did it back then it means it was constitutional?

    There’s a huge difference between “they did it back then” and “they’ve been doing since the 1700s.”

    We’ve been doing the Census for well over 200 years, and asking demographic questions. The penalties for noncompliance used to include jail time, but haven’t for a few decades. So, yes, a government function that has been carried on for over 200 years, is specifically included in the Constitution, and that not been successfully challenged at the Supreme Court is pretty much a textbook definition of “constitutional.”

  52. Jack says:

    @Gromitt Gunn: The only thing that is constitutional is a count. Everything else is extra-judicial B.S. that no one can force a respondent to answer.

  53. Gromitt Gunn says:

    @Jack: You are 100% wrong. Unless the appropriate Court determines that something is unconstitutional, it is constitutional. You may wish or fervently believe that something is unconstitutional, but unless you’re writing for the Court, its just one dude’s opinion.

  54. bill says:

    hopefully it’s just a salvo across the bow to getting our horrible “civil-service” union under wraps- they make the teamsters look like pansies.

  55. William Wilgus says:

    @stonetools: Delenda Est: ‘must be destroyed’, for those of you who were unable to get it translated.

  56. William Wilgus says:

    @Caj: It was obviously a Republican—you didn’t have to read the article to realize that!

  57. William Wilgus says:

    @michael reynolds: “Can we fire people for attending the church of their choice? Can we fire people for reading a book or magazine? Do you think any employer can fire an employee for possessing a legal firearm Seriously, do you think employers can fire you for voting? Or demanding that a police officer show a warrant? What country do you live in? ”

    Not germane.

    Jenos Idanian is correct. The Fifth only applies to self-incrimination. Either she would have incriminated herself by answering the question or she claimed the falsely claimed the privilege. According to the IRS she wasn’t fired, she was removed from her position. Regardless, being fired would probably been better than being held in contempt of Congress.

  58. rudderpedals says:

    …And now we’re learning that Republicans specifically instructed the Treasury IG to narrowly limit its examination to Tea Party groups and concealed the instructions.

    It feels like time for some Benghazi! or maybe Fast and Futile

  59. JoyfulA says:

    @Caj: But Lois Lerner is a Republican, too! She contributed a nice sum to Mitt Romney’s campaign.

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