Lerner, the Fifth and the Committee's Strategy

Carol Platt Liebau
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Posted: Jun 28, 2013 7:27 PM

As Katie has noted above, the House Oversight and Government Reform Committee has concluded that Lois Lerner waived her Fifth Amendment rights at the hearing last week by reading a statement protesting her innocence.  Thus, the subpoena directed to her remains in effect and she may be recalled to testify before the committee.

But what if she invokes the Fifth again? Presumably, she would be held in contempt of Congress.  And again: So what? So was Eric Holder, with little to show for it.  So how does Congress enforce any sanction against Lerner?

It's not easy.  As this document from CRS points out, there are three different ways non-compliance with subpoenas can be enforced. First, there's the argument that Congress itself has "inherent power" to detain and/or imprison someone in contempt.  Clearly, that's not going to happen -- and given that Lerner is a member of the executive branch, it would probably provoke a constitutional (separation of powers) crisis if it did.

Second, Congress can certify a contempt citation to the DOJ for criminal prosecution of the person in contempt.  Does anyone think that's going anywhere in Eric Holder's department?  Yup -- didn't think so.

Third, Congress may seek redress from a federal court, asking for a declaratory judgment that the person is legally obligated to testify.  There are two problems, however, with this approach.  First, it would take a long time (a fact that plays right into Democrat hands).  Second, it's far from clear that the court would agree with congressional assertions that Lerner waived her Fifth Amendment rights.

There's a Supreme Court case from 1955, Emspak v. United States, that's pretty much on point.  There, a union leader appeared before the House Committee on Un-American Activities.  He didn't even explicitly assert his Fifth Amendment rights -- as Lerner did -- and actually answered a question that, in effect, stated that he was invoking his privileges not because he was necessarily subject to criminal prosecution, but because he believed the committee had no right to "pry into my associations" (analogous to Lerner's assertion of her innocence).  The Emspak Court wrote:

Apparently conceding that petitioner . . . intended to invoke the privilege, the Government points out "the probability" that his references to the Fifth Amendment were likewise deliberatedly phrased in muffled terms "to obtain the benefit of the privilege without incurring the popular opprobrium which often attaches to its exercise." On this basis, the Government contends that petitioner's plea was not adequate.  The answer to this contention is threefold.  First, an objection that is sufficiently clear to reveal a probable intention to invoke the privilege cannot be ignored merely because it is not phrased in an orthodox manner. . . .

Indeed, the Court held that in order to be deprived of the Fifth's protection, a witness must "intelligently and unequally waive[] any objection based on the Self-Incrimination Clause" or else "refuse[] a committee request to state whether he relies on the Self-Incrimination Clause."  Lerner did neither.

Presumably, Darryl Issa and the rest of the committee are as aware of these facts and precedents.  My guess? They are presenting Lois Lerner with the spectre of continued, expensive litigation -- which Congress can afford much more easily than she can -- in order to obtain a limited immunity deal with her on relatively favorable terms.

We'll see. 

@CPLiebau