No, Lois Lerner Did Not Waive Her Fifth Amendment Rights By Making An Opening Statement
As you can see in this brief clip from the opening of today’s House Government Oversight Committee hearing, IRS employee Lois Lerner’s decision to assert her Fifth Amendment rights rather than answer questions didn’t come without some degree of controversy:
Essentially South Carolina Congressman Trey Gowdy argued that, by making an opening statement in which she stated that she had not nothing wrong, Lerner had waived her Fifth Amendment rights against self-incrimination. Of course, Gowdy was wrong:
Gowdy’s outraged objection was met with applause in the courtroom. But James Duane, a Fifth Amendment expert at Regent University, says Gowdy’s claim was “extremely imaginative” but “mistaken.”
Had this been an actual criminal trial, in an actual courtroom, and had Lerner been an actual defendant, then yes, it would not have been permissible for her to testify in her own defense and then refuse cross-examination on Fifth Amendment grounds. But a congressional hearing is not a criminal trial in two important ways, Duane tells Daily Intelligencer.
First, unlike in a trial, where she could choose to take the stand or not, Lerner had no choice but to appear before the committee. Second, in a trial there would be a justifiable concern about compromising a judge or jury by providing them with “selective, partial presentation of the facts.” But Congress is merely pursuing information as part of an investigation, not making a definitive ruling on Lerner’s guilt or innocence.
“When somebody is in this situation,” says Duane, a Harvard Law graduate whose 2008 lecture on invoking the Fifth Amendment with police has been viewed on YouTube nearly 2.5 million times, “when they are 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.”
In fact, Duane says, “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.” Such uses of selective invocation “happen all the time.”
The solution to all of this, of course, is that the committee can give Lerner, or anyone else for that matter, immunity so that they could testify without fear that their testimony could be used against him. This type immunity, called transactional or use immunity, does not mean that someone cannot be charged criminally but it does mean that their testimony could not be used against them. This is the same type of immunity that was granted to Oliver North and others during the Iran/Contra hearings in 1987. So, in essence, the ball is in the Committee’s court at this point.