Expert: Lois Lerner Didn’t Waive Her Right to Plead the Fifth

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There are so many amendments in the Constitution of the United States of America. I can only choose one. I can only choose oooooone. Photo: Chip Somodevilla/Getty Images

IRS official Lois Lerner warned Congress yesterday that, if made to appear before the House Oversight Committee this morning, she would invoke her Fifth Amendment right against self-incrimination and refuse to answer questions. Lerner was forced to appear anyway, and after reading an opening statement, in which she insisted that she had done nothing wrong, she informed Chairman Darrell Issa that, as promised, she would plead the Fifth. 

It was at this point (4:28 in the video below) that Issa suggested that, because Lerner had given an opening statement, she had "effectively waived" her Fifth Amendment rights. South Carolina Congressman Trey Gowdy could not agree more (5:09 in the video).

"Mr. Cummings just said we should run this hearing like a courtroom, and I agree with him," Gowdy thundered. "[Lerner] just testified. She just waived her Fifth Amendment right. You don't get to tell your side of the story and then not be subjected to cross examination — that's not the way it works. She waived her right to Fifth Amendment privilege by issuing an opening statement. She ought to stand here and answer our questions."

Gowdy's outraged objection was met with applause in the courtroom. But James Duane, a Fifth Amendment expert at Regent University, says Gowdy's claim was "extremely imaginative" but "mistaken."

Had this been an actual criminal trial, in an actual courtroom, and had Lerner been an actual defendant, then yes, it would not have been permissible for her to testify in her own defense and then refuse cross-examination on Fifth Amendment grounds. But a congressional hearing is not a criminal trial in two important ways, Duane tells Daily Intelligencer.

First, unlike in a trial, where she could choose to take the stand or not, Lerner had no choice but to appear before the committee. Second, in a trial there would be a justifiable concern about compromising a judge or jury by providing them with "selective, partial presentation of the facts." But Congress is merely pursuing information as part of an investigation, not making a definitive ruling on Lerner's guilt or innocence.

"When somebody is in this situation," says Duane, a Harvard Law graduate whose 2008 lecture on invoking the Fifth Amendment with police has been viewed on YouTube nearly 2.5 million times, "when they are involuntarily summoned before grand jury or before legislative body, it is well settled that they have a right to make a 'selective invocation,' as it's called, with respect to questions that they think might raise a meaningful risk of incriminating themselves."

In fact, Duane says, "even if Ms. Lerner had given answers to a few questions — five, ten, twenty questions — before she decided, 'That's where I draw the line, I'm not answering any more questions,' she would be able to do that as well." Such uses of selective invocation "happen all the time."