INVOKING THE FIFTH IN CONGRESSIONAL HEARINGS: Lois Learner Plays it Smart in Face of Political Witch Hunt

As criminal defense lawyers we often advise innocent clients to invoke the Fifth Amendment in situations where they might face exposure to criminal allegations.  This is especially so when the inquisitor has abandoned neutrality and has jump to a conclusion of wrongdoing.

This past April Treasury Department Inspector General for Tax Administration issued a long anticipated report (“Report) which concluded that the IRS had targeted conservative, Tea Party, and Patriot groups for select, excessive review of their requests for tax exempt status under IRC 501(c)(4). The report triggered a firestorm of outrage among Congressional officials, both Democrat and Republican alike, who immediately announced that virtually every Senate/House committee with jurisdiction over the IRS would hold hearings to get to the proverbial “bottom of the story.”

In the midst of all this legislative hoopla, U.S. Attorney General Eric Holder ordered the FBI to conduct an investigation into the report to determine if there had been any criminal or civil rights violations by the IRS through the agency’s selective 501(c)(4) review of organizations seeking tax exempt status.

The media quickly identified Lois Lerner as the director of the IRS office that processes 501(c)(4) applications. They pounced on her like a pit bull on a poodle; indicting, trying and convicting her before she had time to apply morning makeup. The media attacks were relentless;—their “breaking news” assaults were more “scandalous” than the alleged “scandal” they were pursuing. These reports were so irresponsible that they gave Rep. Michele Bachmann (R-Minn.), the face of the Tea Party movement, another forum in which to launch a call for President Obama’s impeachment.

It was against this backdrop that Lerner was called before the House Oversight and Government Reform Committee whose chairman, Darrell Issa (R-Cal.), has “investigated” everything from “Texas Hoggers” to Louisiana’s “Swamp People.” Before this particular representative brushes his teeth in the morning, he looks into the bathroom mirror and repeats his favorite mantra one hundred times: “Get Obama!”

But Lois Lerner proved to be no village idiot. She knew what Issa and his committee cronies had in store for her. She retained veteran DC attorney William Taylor to represent her, and just as any competent attorney would do with a client who might be a target of an FBI investigation, he advised his client to invoke her Fifth Amendment right not to be compelled to provide testimony that might incriminate her in a criminal proceeding.

“Pleading the Fifth” was once a fairly exclusive protection “organized crime figures” used to shield themselves from Congressional and/or grand jury investigations into their criminal activities. Then in 1970 Congress enacted the Federal Use Immunity Act as Title II of the Organized Crime Control Act of 1970 which grants immunity for compelled congressional testimony.

Issa knew Lerner she probably would not testify. House Speaker John Boehner had concluded, before seeing the evidence, and announced he wanted to see someone go to jail. That statement put a chill on the willingness of any IRS official remotely associated with the 501(c)(4) scandal to cooperate with any legislative or law enforcement investigation.

Lerner did exactly what she needed to do: she retained a good criminal defense attorney and accepted that attorney’s sound, professional advice not to cooperate with Issa’s committee or the ongoing FBI investigation. Both inquiries were designed to find wrongdoing, whether remotely criminal or not.

If Rep. Issa had truly been interested in finding out exactly what happened in the 501(c)(4) process, he would have extended a grant of immunity to Lerner. She would have been required to testify—and if she then refused to testify and became what is called a “recalcitrant witness,” she could have faced a “civil contempt” proceeding” designed to compel her testimony. And if Lerner remained silent in the civil contempt proceedings, a court under Rule 42(b) of the Federal Rules of Criminal Procedure could have imposed a criminal contempt citation after giving her notice and a hearing.

The courts have generally agreed that these two remedies, taken in concert, serve the purpose of inducing a witness to testify while punishing her when she refuses to do so. But the U.S. Supreme Court more than 50 years ago warned that “ … the power to compel testimony is not absolute. There are a number of exemptions from the testimonial duty, the most important of which is the Fifth Amendment privilege against compulsory self-incrimination.”

That was a sticky-wicket for Rep. Issa. His committee could have induced Lerner to testify under the threat of punishing her if she failed to do so. But the committee could not under the Fifth Amendment compel her to provide testimony that could be used in a criminal prosecution or lead to information that could open the door to a criminal prosecution. Lerner’s only burden would have been to demonstrate she “reasonably believed” the committee was looking to “witch hunt” someone into such a criminal prosecution.

As the Supreme Court has noted, “immunity statutes” have “historical roots deep in Anglo-American jurisprudence” which “seek a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify.”

Lois Lerner she did the wise, smart, and absolutely correct thing when she got up and walked out on the committee.  We certainly would have advised her to do the same, regardless of her belief that she did no wrong.