Thursday, May 23, 2013

Did IRS Official Lois Lerner Waive Her Right to Plead the 5th Amendment?

Let me say up front so that nobody tries to accuse me of anything - I have NO IDEA what IRS Official Lois Lerner's involvement was or wasn't in the latest IRS scandal.  She could be guilty.  She could be innocent.  I haven't the foggiest.  And for the purpose of this post, I don't care.  The only issue this post is concerned with is whether or not she waived her 5th Amendment rights by stating at the beginning of her Congressional hearing yesterday that she was innocent of any wrong doing and had not broken any laws.

Per NPR this is what Lerner said at the beginning of her statement:

"I have not done anything wrong. I have not broken any laws, I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee."
After making this statement, she then proceeded to take the 5th Amendment on all other questions.  As you can imagine, this didn't go over too well with the House Committee members:
Instead of simply taking the scorn of lawmakers for a day, repeatedly invoking the Fifth Amendment to avoid self-incrimination, and then moving on, she chose defiance. And her bravado has prompted House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) to say she has waived her constitutional right to not comment. Now, he plans to haul the director of the IRS’s tax-exempt department back to the committee for questioning. “When I asked her her questions from the very beginning, I did so so she could assert her rights prior to any statement,” Issa told POLITICO. “She chose not to do so — so she waived.”  Lerner shocked the committee room in the opening moments of Wednesday’s hearing by delivering an opening statement denying any wrongdoing and professing pride in her government service.
So, did Lerner waive her right to plead the 5th by making her opening statement that she was innocent?
The 5th Amendment is one of the most substantive amendments in the Constitution.  It is packed full of several Constitutional rights: Due Process of law from the federal government, the Right against Double Jeopardy, and, of course, the Right to not incriminate yourself.  I'll highlight the source of that Right in the text of the 5th Amendment below:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The Supreme Court has interpreted that highlighted portion above to mean that you and I can quote/unquote "plead the 5th" whenever we are asked questions that might incriminate us.  The Supreme Court has also interpreted this clause to mean that whenever we are charged with a crime by local, state or federal government, the above-referenced clause means that we do not even have to take the stand to testify at all.  Nope.  Thanks to the 5th Amendment, you can just sit in your chair next to your attorney at your own trial.  That's why you do not see many criminal defendants who testify at their own trials.  Moreover, if you do refuse to take the stand during your criminal trial, the prosecutor is strictly forbidden from making any reference to that fact whatsoever that might suggest that you chose not to take the stand because you are guilty.  If they do, it will likely result in a mistrial.  That's how far the 5th Amendment goes.  

Here, Lois Lerner first (1) took the "stand", (2) testified as to her own innocence, and then (3) plead the 5th.  Which has the House Committee scratching their heads as to whether or not you can do that legally.  I think Congressman Issa and other House Committee members may be confused on how the 5th Amendment works.  To be sure, usually when people take the 5th, whether it's in a courtroom or in a Congressional hearing, they will usually state at the very beginning that they intend to plead the 5th and then they don't say anything else after that.   Here, obviously, Lerner proclaimed her innocence on the record and then pled the 5th, which is not how it is normally done.  But just because it doesn't normally happen that way doesn't mean that it can't happen that way.

In Ohio v. Reiner, 532 U.S. 17 (2001), the Supreme Court specifically rejected the argument that Congressman Issa is making here about people who testify to their own innocence and then take the 5th.  In that case, the United States Supreme Court overruled the Ohio State Supreme Court and held that:
But we have never held, as the Supreme Court of Ohio did, that the privilege is unavailable to those who claim innocence. To the contrary, we have emphasized that one of the Fifth Amendment's "basic functions ... is to protect innocent men ... 'who otherwise might be ensnared by ambiguous circumstances.'" In Grunewald, we recognized that truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker's own mouth. The Supreme Court of Ohio's determination that [the criminal defendant] did not have a valid Fifth Amendment privilege because she denied any involvement in the abuse of the children clearly conflicts with Hoffman and Grunewald.
So there you have it.  Yes, it is possible to assert your innocence AND plead the 5th.  You do not, as Congressman Issa suggested, "waive" your right to plead the 5th by stating that you are innocent of any wrongdoing.

[EDITOR'S NOTE:  It should be noted, however, that in a criminal trial if a criminal defendant pleads the 5th then they cannot take the stand and answer some questions and then refuse to answer others. It's all or nothing.  If, on the other hand, a witness in a criminal trial takes the stand, they can answer some questions and plead the 5th on others.  Even though there are key differences between criminal trials and Congressional hearings, Lois Lerner appeared before Congress as a witness, not as a criminal defendant.]

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