Lawmakers, constitutional scholars debate whether Lois Learner waived the "Fifth"
GOP, some attorneys say rights were waived when she gave statement of innocence
Democrats, many constitutional law experts say right not to self-incriminate stands
Lerner was placed on administrative leave Thursday
Just before Lois Lerner invoked her Fifth Amendment right not to answer questions in front of a House committee investigating wrongdoing in the IRS tax-exempt office she ran, she gave an opening statement insisting her innocence.
“I have not done anything wrong. I have not broken any laws. I have not violated any IRS rules and regulations,” said Lerner at the hearing. She has since been placed on administrative leave.
But that statement angered Republican House Oversight Committee Chairman Darrell Issa and others on the committee, causing him Thursday to threaten to recall Lerner and force her to answer his questions, believing she had, in fact, waived her constitutional rights.
“She just testified. She just waived her Fifth Amendment right to privilege,” South Carolina Republican Rep. Trey Gowdy, a former federal prosecutor, said to applause during Wednesday’s hearing. “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.”
“After consulting with counsel, Chairman Issa has concluded that Ms. Lerner’s Fifth Amendment assertion is no longer valid. She remains under subpoena, the Committee is looking at recalling her for testimony,” Oversight committee spokeswoman Becca Glover Watkins told CNN Thursday in a statement.
Issa’s office declined to explain what his counsel’s legal basis was for deciding that her Fifth Amendment assertion is no longer valid.
But Democrats and several legal experts think Issa was wrong.
“I’m surprised that chairman Issa’s taken that position,” Ranking House Oversight Committee Democrat Rep. Elijah Cummings, D-Maryland told CNN on Thursday. “First, all the law that I’ve read says that she did not waive her right. As a lawyer I don’t believe she waived her right. And I believe that we as a committee should honor one’s right, and as a matter of fact.”
Some legal experts agree.
“The only true ways to “lose” one’s rights under the Fifth Amendment are, one, for a court to find that the claimant does not have a reasonable fear of prosecution, because nothing she says could in fact become a helpful link to a prosecution, or two, to get an order of immunity that guarantees that nothing she says will in fact be used to prosecute her,” said Miguel A. Estrada, a conservative attorney who helps head the law firm Gibson, Dunn & Crutcher’s appellate and constitutional group and who was once nominated by President George W. Bush to the U.S. Court of Appeals. “The first is unlikely here, and no one is offering to do the second.”
It is true that high-profile congressional hearings are equal parts official proceeding and political spectacle.
And the very act of being called to testify before Congress can create an impression of guilt in the court of public opinion, even though the congressional panel isn’t issuing any kind of legal ruling. In these instances, it might be best to show up with an attorney for the benefit of appearances for the folks back at home watching on television, but plead the “Fifth” on sticky legal questions.
But even in front of Congress, experts say, a witness doesn’t necessarily lose Fifth Amendment protections by speaking first.
“One can invoke the Fifth Amendment at any time. Giving a preamble or any kind of statement doesn’t void that,” said Gloria J. Browne-Marshall, an associate professor who teaches constitutional law at John Jay College of Criminal Justice in New York. “Now does it look suspicious? Yes. Does it undermine the person’s credibility? Yes.”
Former Enron CEO Kenneth Lay, former lobbyist Jack Abramoff, retired Lt. Col. Oliver North, baseball player Mark McGwire and White House party crashers Tareq and Michaele Salahi all invoked Fifth Amendment privilege before Congress due to concerns that anything they may have said could have been used against them in court.
And, like Lerner, many of them offered some type of statement before or after taking The Fifth.
“I think what she did was unconventional,” said Samidh Guha, a former federal prosecutor who now practices at the law firm Akin, Gump, Strauss, Hauer & Feld LLP. “But it’s hyper technical to say she waived her Fifth Amendment privilege.”
CNN’s Dana Bash and Rachel Streitfeld contributed to this report.