Via Charlie Spiering, a video accompaniment to the House Oversight Committee’s decision this morning to hold Lerner in contempt for refusing to testify before it. Wait, you say — doesn’t she have a Fifth Amendment privilege against self-incrimination that gives her the right not to answer questions from Congress? She sure does, unless she waives that right by effectively testifying on her own behalf. A defendant in a criminal trial can refuse to testify entirely or he can testify on his own behalf and then face cross-examination from the prosecution, but he can’t offer the jury his own story and then decline to answer questions from the other side. That’s exactly what Lerner did last year in her opening statement to the committee, says Gowdy. She made multiple assertions of fact — she’s innocent, has committed no crime, etc — and then, when Issa and company tried to cross-examine her, she clammed up. That’s the basis of the contempt charge. You can’t selectively invoke your privilege against self-incrimination.
Or can you? Specifically, can you selectively invoke it in a civil proceeding like a congressional hearing even if you can’t do so in criminal court? Answer: It’s … hard to say. There isn’t much jurisprudence on the privilege in congressional settings. Ask six different lawyers and you might get six different opinions. Last year Alan Dershowitz said it was an open-and-shut case: Yes, Lerner had indeed constructively waived her privilege in an opening statement. Not so, said law prof James Duane: Witnesses have long been permitted to make “selective invocations” in civil proceedings (which are primarily about fact-finding rather than judgments of guilt), especially when they’ve been forced to appear against their will. Orin Kerr of the Volokh Conspiracy looked at the case law and found no clear answer; when he put the question to a law-prof listserv, most thought Lerner hadn’t waived her privilege although “opinions were somewhat mixed.”
Ken White of Popehat sifted through precedent on this issue last month and came to this conclusion:
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.
Gonna take a few federal courts to hash this out, which, of course, is why Issa’s committee voted as it did this morning. The contempt charge will presumably be challenged by Lerner and then away we go up the chain towards the D.C. Circuit (and the Supreme Court?). Or maybe she’ll surprise us, agree to testify, and offer a handy explanation for why she was thinking of applying for a job at OFA at the same time she was demanding audits of major Republican Super PACs. Can’t wait.