Bench Memos

The Dog That Didn’t Bark: The Administration’s Curious Stance on Lois Lerner

I’ve been getting a number of questions about the IRS’s Lois Lerner pleading the Fifth this week during her congressional appearance. Let me provide some background and suggest an avenue that could unearth the facts of this scandal quickly while at the same time confer the immunity Lerner seeks.   

Let’s dispose of the waiving issue first:  I agree with the agreeable Hans von Spakovsky that Lerner’s brief statement prior to invoking the Fifth won’t trigger a contempt charge. It was akin to a civil proceeding, a clear distinction from the criminal proceedings that rarely allow a witness to invoke the Fifth Amendment selectively. As with any issue, I am open to hearing other opinions on this waiving business, but as of now I am not persuaded. 

The whole point of the Fifth Amendment is predicated on the risk that criminal charges may be brought against you. For example, if a prosecutor has a witness who is pleading the Fifth, he can immunize that witness and compel him to testify. Anything he says on the stand cannot be used against him as long as he tells the truth. In the Lerner scenario, the House Committee on Oversight and Government Reform can simply have her testify either 1) while not under oath, or 2) after they have conferred immunity for her testimony while under oath. The latter has a powerful advantage over the former since anything she lies about opens her to a perjury prosecution, but as long as she tells the truth she will be in the clear. This has the added advantage of getting to the truth speedily, as opposed to learning the truth from a trial years from now. 

What I find curious is that the administration has not opted to take the one action that could allow the nation “to make sure that we understand all the facts.” If I am reading the case law correctly, this administration could simply compel Lerner to testify or face immediate termination. Since compelling testimony is analogous to a direct order, there is precedence for termination that doesn’t involve the typical procedures used to block the firing of civil-service employees (I recommend Daniel Foster’s excellent piece on the near impossibility of firing civil-service employees under normal circumstances).

As I explained during a speech earlier this year at the University of Arizona College of Law, when the government compels an employee or contractor to testify or otherwise make statements under the threat of job loss, nothing they say can be used against them in a prosecution. In fact, if they are prosecuted subsequent to the compelled statements, the prosecution bears the burden to show those statements were not used, or derivatively used, in any way whatsoever during a Kastigar hearing.

Compelling Lerner to answer specific questions concerning her official duties under the threat of job loss is well within the government’s power. This would accomplish two things at once: 1) free Lerner to testify so we can “make sure that we understand all the facts” and 2) simultaneously immunize her from prosecution for anything she says during that testimony. I have not read any persuasive legal argument from the administration as to why they have not already compelled Lerner’s testimony. The faster we get the truth about our nation’s most powerful government office violating the constitutional rights of citizens, the better. 

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