A Poll: Did Lois Lerner Waive Her Fifth Amendment Rights?

As many of you know, Lois Lerner, the head of the IRS division on tax-exempt organizations, testified before Congress this week. However, the media coverage has not focused on what she said as much as what she ended up not saying. Ms. Lerner invoked her Fifth Amendment rights and refused to answer any questions about her possible misconduct:

I have been advised by my counsel to assert my constitutional right not to testify or answer questions related to the subject matter of this hearing. one of the basic functions of the fifth amendment is to protect innocent individuals. and that is the protection I am invoking today.

There’s nothing all that unusual about a witness before Congress invoking her Fifth Amendment rights. It’s a common—and unfortunate—practice for Congress to insist that a witness appear before a committee even when the committee knows full well that the individual intends to take the Fifth. It’s nothing more than pure grandstanding and harassment. I’ve sat next to a witness who is asserting those rights before a committee and watched the cameras flash and the video roll. I’m sure it’s great fun for the committee members to watch a witness take the Fifth because the public will assume that the person has something to hide. In my view, Congress should stop trying to bully people into not asserting their constitutional rights for ten seconds of tape for the television news.

What else did Ms. Lerner say and did she waive her rights by saying it?

What has made Ms. Lerner’s testimony a media firestorm—at least for the lawyers in the room—is the fact that before she invoked her rights, she made a statement asserting that she was innocent. Here’s an excerpt:

My professional career is devoted to fulfilling responsibilities of the agencies for which I worked and I am very proud of the work that I have done in government. Members of this committee have accused me of providing false information when I responded to questions about the IRS processing of applications for tax exemption. I have not done anything wrong. I have not given false information to this or any other congressional committee.

Ms. Lerner is represented by extremely capable counsel, William W. Taylor of Zuckerman Spaeder, and he has no doubt thought through all the issues surrounding a possible waiver. The Washington Post quoted his response to the accusation that she had waived her rights by giving an opening statement:

The law is clear that a witness does not waive her Fifth Amendment rights not to testify as to facts by asserting that she is innocent of the wrongdoing with which she is accused.

He went on to say that her comments which described the operation of her division and the investigations of it

simply said, ‘This is what you guys accused me of, I’m not guilty of it.’

I’m not going to second guess Mr. Taylor’s advice and, frankly, it sounds right to me. But I’m sure every prosecutor out there will disagree. The prevailing view seems to be that any statement other than a recitation of the witness’ name and address is a waiver.

I thought I’d poll some of the online chatter to see where it comes out. Is it a waiver? Was her opening statement really “testimony”? Was it more akin to a not guilty plea since she did nothing more than say she did nothing wrong? Let’s see where everyone is:

Shockingly, Darrell Issa (R-Calif.) is a yes, reports Politico.

The Washington Post and New York Times took a “just the facts” approach and expressed no opinion.

The Heritage Foundation concludes that there’s no “clear cut answer.”

Alan Dershowitz says she waived her rights.

Two former prosecutors—Joseph DiGenova and Tom Corbett (now Pennsylvania Governor)—agree with Dershowitz.

Regent University law professor James Duane concludes the opposite—she didn’t waive them.

Lawrence Goldman, writing on the White Collar Crime Prof Blog agrees with Mr. Duane–she did not waive her rights.

If Congressman Issa decides to call her back to testify, Ms. Lerner could ask for immunity before she agrees to appear. If the committee says no and she refuses to appear, Issa (or others) could initiate contempt proceedings against her. Ultimately, the case would be referred to the federal district court in DC to decide the issue. Stay tuned. How this case plays out may have repercussions for other witnesses who are called before Congress as part of its “oversight” (read: political grandstanding) role.

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