Today former IRS official Lois Lerner again invoked her Fifth Amendment privilege against self-incrimination and declined to answer questions from a Congressional panel.
Prior to this I had not realized how many people on the internet are experts on the Fifth Amendment and criminal defense.
I have a few comments.
The Waiver Issue
Some people argue that Lerner waived her Fifth Amendment rights by making an opening statement denying wrongdoing at a hearing last May. Though that argument is colorable — by which I mean not obviously wrong — it's not obviously right, either.
There are a few problems with the waiver argument. The first is the "same proceeding" doctrine. A witness may waive the Fifth Amendment right to self-incrimination in one proceeding, and then invoke it later at a different proceeding on the same subject. So, for instance, a criminal defendant can testify before the grand jury or at a preliminary hearing but refuse to testify at trial. Here the question presented would be whether today's hearing is part of the same proceeding as last May's hearing, or a different proceeding.
The second problem is more thorny. It's the question of whether a non-incriminating and self-serving opening statement serves as a waiver as to a general subject matter. Here we're faced with conflicting pronouncements from the courts. On the one hand, consider the broad general language of the Supreme Court in Mitchell v. U.S.:
It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. See Rogers v. United States, 340 U.S. 367, 373 (1951). The privilege is waived for the matters to which the witness testifies, and the scope of the "waiver is determined by the scope of relevant cross-examination," Brown v. United States, 356 U.S. 148, 154 155 (1958). "The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry," id., at 155. Nice questions will arise, of course, about the extent of the initial testimony and whether the ensuing questions are comprehended within its scope, but for now it suffices to note the general rule.
The justifications for the rule of waiver in the testimonial context are evident: A witness may not pick and choose what aspects of a particular subject to discuss without casting doubt on the trustworthiness of the statements and diminishing the integrity of the factual inquiry. As noted in Rogers, a contrary rule "would open the way to distortion of facts by permitting a witness to select any stopping place in the testimony," 340 U.S., at 371. It would, as we said in Brown, "make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell," 356 U.S., at 156. The illogic of allowing a witness to offer only self-selected testimony should be obvious even to the witness, so there is no unfairness in allowing cross-examination when testimony is given without invoking the privilege.
On the other hand, earlier and more specific Supreme Court cases suggest that limited and non-incriminating statements do not waive an involuntary witness' Fifth Amendment right to refuse to answer probing questions into the topic. The root of these is McCarthy v. Arndstein, where the court suggested that a debtor in an involuntary bankruptcy did not waive the privilege by filing non-incriminating schedules. "And since we find that none of the answers which had been voluntarily given by Arndstein, either by way of denials or partial disclosures, amounted to an admission or showing of guilt, we are of opinion that he was entitled to decline to answer further questions when so to do might tend to incriminate him." Later the Supreme Court narrowed this rule somewhat in Brown v. United States, finding that a witness did waive her right against later self-incrimination when she voluntarily took the stand as a witness in a civil proceeding.
Different courts have reconciled these principles different ways. Some have followed the McCarthy rule. For instance:
We also hold that Fox did not waive the privilege merely by failing to invoke it at an earlier time. Because Fox did not admit at any earlier stage of this proceeding to guilt or to facts which are themselves incriminating, he cannot be deprived of the right to assert the privilege.
Or like this court:
Applying the rule of McCarthy and James to our case, we have examined the testimony of Miss Hitchings and find nothing to indicate in "the previous disclosure … an actual admission of guilt or incriminating facts." McCarthy at p. 359, 43 S.Ct. at p. 563. Neither do we find that "incriminating facts have been voluntarily revealed." James at p. 45. The mere fact that Miss Hitchings has most recently testified that she previously testified truthfully to the grand jury is not an incriminating fact voluntarily revealed or an admission of guilt. It is, therefore, our opinion that she has not waived the right to assert her Fifth Amendment privilege against self-incrimination.
Other courts have carefully parsed McCarthy and Brown and ruled based on whether the alleged waiver occurred in voluntary testimony (like a voluntarily submitted affidavit) or compelled testimony (like responding to a subpoena):
The Court is satisfied that Brown is entirely applicable to the facts of this case where *336 Faloon has voluntarily testified by affidavit and his gratuitous statement at deposition to various facts in a civil proceeding on his own behalf or on behalf of his company, albeit not an admission of guilt or clear proof of a crime. As the Brown Court so alluded, Arndstein is not applicable here because it dealt with a more narrow circumstance where an individual is subjected to "involuntary examination … where he is practically in the position of a witness under cross-examination." Arndstein, 262 U.S. at 359, 43 S.Ct. 562. See Brown, 356 U.S. at 154, 78 S.Ct. 622. In the Arndstein -type situation where the testimony of a witness is compulsory, the law makes it more difficult to find a waiver of the witness's privilege, requiring a clear admission of guilt or proof of a crime. See also, e.g., In re Hitchings, 850 F.2d 180 (4th Cir.1988) (nonparty witness compelled to testify in criminal trial found not to have waived her Fifth Amendment privilege). However, in this case, as in Brown, where the witness is testifying voluntarily on his own behalf in a civil proceeding, waiver of the privilege may be found despite the facially innocent testimony. See Brown, 356 U.S. at 154, 78 S.Ct. 622; see also Presser v. United States, 284 F.2d 233, 235 (D.C.Cir. 1960) (witness who testified before congressional committee that he complied with the subpoena to the best of his ability was found to have waived his Fifth Amendment privilege as to questions regarding whether he destroyed any records). Thus, the Court in this case must determine whether Faloon in fact waived his privilege as articulated in Brown, and if so, the scope of that waiver.
In short, it is not perfectly clear that Lois Lerner waived her Fifth Amendment rights by making an exculpatory and self-serving opening statement. The factors in favor of waiver are (1) that she made the statement purely voluntarily and gratuitously, and (2) that it was on the same subject matter of the questioning she would be facing. The factors against waiver are (1) that she was compelled to appear and (2) the statement did not admit any incriminating facts. At a minimum, in my view it was reckless for her to make an opening statement if her genuine aim was to protect her Fifth Amendment rights, given the uncertainty of the law.
The Problem of Compelled Testimony
Some people have argued that Lois Lerner should be compelled to testify, either by court order or by grant of immunity. Lerner and her lawyers would love that, as it would make prosecuting her for any suspected wrongdoing incredibly difficult.
Compelled testimony is radioactive. If a witness is compelled to testify, in any subsequent proceeding against them the government has a heavy burden to prove that no part of the prosecution is derived from the compelled testimony, which is treated as immunized. This is called the Kastigar doctrine:
"Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence." 378 U.S. at 378 U. S. 79 n. 18. This burden of proof, which we reaffirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.
This is not a mere theoretical problem in Lois Lerner's case. Oliver North's convictions were reversed based on a Kastigar issue after he was compelled to testify before Congress. The appellate court found that the trial court had not held an adequate Kastigar inquiry into the independent source of the prosecution's evidence, and on remand the trial court found that the government could not carry its burden of showing an independent source.
Now, if a court found that Lerner had waived her Fifth Amendment privilege against self-incrimination, and ordered her to testify on that basis, then her testimony would not be compelled for Kastigar purposes. But that's a risky gambit. If the Court of Appeals disagreed and determined that Lerner had not waived her privilege, then any testimony would be treated as compelled for Kastigar purposes.
In short, compelling Lerner might provide a circus, but if the purpose is to preserve the ability to prosecute her for any suspected wrongdoing, it's potentially counterproductive.
"What Does She Have To Hide?"
I've been seeing a lot of comments to the effect of "why should Lois Lerner take the Fifth if she has nothing to hide?" Ironically these comments often come from people who profess to oppose expansive government power, and from people who accept the proposition that Lerner was part of wrongdoing in the first place — in other words, that there was a government conspiracy to target people with the machinery of the IRS for holding unpopular political views. Such people do not seem to grasp how their predicate assumptions answer their own question.
You take the Fifth because the government can't be trusted. You take the Fifth because what the truth is, and what the government thinks the truth is, are two very different things. You take the Fifth because even if you didn't do anything wrong your statements can be used as building blocks in dishonest, or malicious, or politically motivated prosecutions against you. You take the Fifth because if you answer questions truthfully the government may still decide you are lying and prosecute you for lying.
Pardon me: if you accept the proposition that the government targets organizations for IRS scrutiny because of their political views, and you still say things like "why take the Fifth if you have nothing to hide", then you're either an idiot or a dishonest partisan hack.
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