Did IRS official Lois Lerner waive her right to silence?

Republicans claim that the embattled IRS manager lost her Fifth Amendment rights by denying wrongdoing

Lois Lerner listens at the start of a House oversight hearing on May 22.
(Image credit: AP Photo/J. Scott Applewhite)

IRS official Lois Lerner, the director of the agency's division that singled out Tea Party groups applying for tax-exempt status, invoked her Fifth Amendment right against self-incrimination before a House oversight committee hearing on Wednesday. But before she took the Fifth, she made a short statement. (Watch below.)

After talking about her career and describing what the IRS inspector general reported and the House committee's accusation that she provided false information, Lerner said:

I have not done anything wrong. I have not broken any laws. I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee. And while I would very much like to answer the committee's questions today, I've been advised by my counsel to assert my constitutional right not to testify or answer questions related to the subject matter of this hearing.

After very careful consideration, I've decided to follow my counsel's advice, and not testify or answer any of the questions today. Because I'm asserting my right not to testify, I know that some people will assume that I've done something wrong. I have not.

Rep. Trey Gowdy (R-S.C.), a former federal prosecutor, immediately pounced, saying Lerner "waived her right to Fifth Amendment privilege by issuing an opening statement." In court, he continued, "you don't get to tell your side of the story and then not be subjected to cross examination — that's not the way it works."

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Rep. Darrell Issa (R-Calif.), the committee chairman, agreed that Lerner "effectively waived" her right to take the Fifth, and he's vowing to haul her back in for questioning, when he would presumably inform her that she has to testify. Issa closed the hearings without formally adjourning, meaning he can call Lerner back after Congress' week-long Memorial Day recess.

Did Lerner really relinquish her Fifth Amendment rights? Can Issa compel her to testify? "I don't think the answer is clear, as there are no cases quite like it," says Orin Kerr at The Volokh Conspiracy. Generally speaking, "a witness can't testify about her version of the facts and then invoke the Fifth Amendment when facing cross examination," so it sort of depends on whether you think Lerner testified to any facts in her statement.

I'm not enough of a Fifth Amendment nerd to have strong views on which side is right. So I posed the question... to a listserv of criminal procedure professors that includes some serious Fifth Amendment experts. Opinions were somewhat mixed, but I think it's fair to say that the bulk of responders thought that Lerner had not actually testified because she gave no statements about the facts of what happened. If that view is right, Lerner successfully invoked her Fifth Amendment rights and cannot be called again. [Volokh Conspiracy]

No, Lerner "is in trouble," Harvard's Alan Dershowitz tells Newsmax. "You can't simply make statements about a subject and then plead the Fifth in response to questions about the very same subject," he adds. "Once you open the door to an area of inquiry, you have waived your Fifth Amendment right" against self-incrimination on that subject.

That might be true if Lerner were a criminal defendant in an actual criminal trial, Regent University's James Duane, a Fifth Amendment expert, tells New York. Trying to apply the same rules to a congressional hearing, while "extremely imaginative," is "mistaken." Lerner didn't get to choose whether to testify, as in a criminal hearing, and when people "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." Duane adds that in Lerner's case, it isn't even a close call:

Even if Ms. Lerner had given answers to a few questions — five, 10, 20 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. [New York]

Outside the Beltway's Doug Mataconis is more succinct:

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At the very least, Georgetown's Paul Rothstein tells Politico, Lerner "has run a very grave risk of having waived her right to refuse to testify on the details of things she has already generally talked about."

Got it? As is evident, "like many legal questions, it depends on whom you ask," says Juliet Eilperin at The Washington Post. Almost everyone agrees that making a statement before taking the Fifth was a risk, however. So what happens next? "In order to compel Lerner to testify, Congress would have to hold her in contempt," explains Eilperin.

In certain circumstances, Lerner's detailed opening statement could be interpreted as a "subject matter waiver," meaning she had made factual statements about the case that then opened the door for the committee to ask her for further details. But to do that they would have to hold her in contempt, and get a judge to rule in favor of it. [Washington Post]

That's the law. What about the politics? Issa shouldn't have recessed the hearing without forcing Lerner to "stay and answer, even if her answers were continuing to take the Fifth, if only for the political spectacle," says Ross Kaminsky at The American Spectator. But Issa has redeemed himself by vowing to call Lerner back in, Kaminsky says.

She will be told, presumably, that she cannot take the Fifth. My guess is that she will do so anyway, leading to a lawsuit between her lawyers and the committee's lawyers. It should be a beautiful thing to watch, making Jay Carney squirm every step of the way. [American Spectator]

Why get bogged down in a legal fight over Lerner? asks Hot Air's Allahpundit. Issa will either drop the idea of calling Lerner back to testify or "he'll bring her back simply to have her sit there and plead the Fifth repeatedly in response to the committee's questions," but he won't hold her in contempt.

What happens when Issa brings her back and the questions begin? Could be that she'll cave and start answering, but I assume her lawyer will tell her to take the Fifth again, in which case it's Issa's move. He could try to hold her in contempt, which would probably ignite a court battle and would certainly ignite lots of media concern-trolling about the GOP crushing Lerner's rights.... Politically, it might even be worth losing the court battle: Litigation will only call more attention to the fact that Lerner doesn't want to talk for mysterious reasons, which makes the IRS' actions look that much shadier. Still, there are other fish to fry here that make it not worth getting bogged down — yet — in a privilege fight over Lerner. [Hot Air]

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Peter Weber

Peter Weber is a senior editor at TheWeek.com, and has handled the editorial night shift since the website launched in 2008. A graduate of Northwestern University, Peter has worked at Facts on File and The New York Times Magazine. He speaks Spanish and Italian and plays bass and rhythm cello in an Austin rock band. Follow him on Twitter.