A Few Notes On Lois Lerner And The Fifth AmendmentMarch 5, 2014
By Ken White
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 IssueSome 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.
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The Problem of Compelled TestimonySome 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:
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"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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