Invoking the Fifth - the House Oversight Inquisition (5/25/13)

Most readers will already know that Lois Lerner, a manager in the IRS division processing Section 501(c)(4) exempt organizations applications, invoked her 5th Amendment privilege in the House Oversight Committee public investigation (more akin to an inquisition than an objective search for truth).  The manner in which she invoked the Fifth was to first proclaim her innocence of criminal wrongdoing and then invoke the Fifth without being proffered any specific questions.  I want to address both aspects of what she did.

First, she advised the Committee that she would invoke the Fifth.  She did not do that in response to specific questions, which is the way the Fifth should be invoked, for only in the context of a specific question or questions can the validity of the assertion of the Fifth Amendment be determined.  The corollary to that is that, she cannot be held to have improperly invoked her Fifth Amendment privilege unless she is propounded the question(s) and asserted the Fifth in response to the question(s).  The Committee did not propound the questions.  Hence, there is nothing to ask a court to compel her to testify or to hold her in contempt for failing to answer.  I suppose the Committee could cure that by recalling her and propounding the questions -- either in a public session or a private session. Then the Committee could have something to enforce.

Second, the issue that has grabbed the public attention is whether her opening insistence on her innocence waived the Fifth Amendment privilege.  There is a lot of discussion on the blogosphere on this issue and I cite one of the better discussions below.  The leading authority is Mitchell v. United States, 526 U.S. 314, 321(1999), where the Supreme Court laid out the general rule (boldface added by JAT):

It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. See Rogers v. United States, 340 U.S. 367, 373 (1951). The privilege is waived for the matters to which the witness testifies, and the scope of the “waiver is determined by the scope of relevant cross-examination,” Brown v. United States, 356 U.S. 148, 154—155 (1958). “The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry,” id., at 155. Nice questions will arise, of course, about the extent of the initial testimony and whether the ensuing questions are comprehended within its scope, but for now it suffices to note the general rule.

One of the issues is the boldface language -- in a single proceeding.  Certainly, for example, a criminal trial would be a single proceeding.  If the defendant testified in his own defense in a criminal trial, he has waived the Fifth Amendment privilege and must answer questions on cross-examination within the scope of his direct testimony.  I suppose the Committee hearing is a single proceeding but for reasons I note below, I question whether it is the type of proceeding contemplated by the Mitchell waiver holding.

Before turning to that, I focus on criminal tax investigations that precede criminal prosecution.  Certainly, taxpayers who answer questions in a criminal investigation may thereafter invoke the privilege in a subsequent prosecution.  See IRM 9.4.5.11.3.2.2  (05-15-2008), Waiver of Constitutional Rights, here.  Using Mitchell's "proceeding" limitation, the investigation is not a single proceeding with the subsequent criminal prosecution.  But, is the investigation itself a "proceeding" which, under the Mitchell analysis would mean that answering questions early in the investigation has waived the privilege not to answer questions thereafter during the investigation.  I think that the answer for that is no; that if the taxpayer has answered questions in the investigation, he or she may later in the same investigation invoke the Fifth Amendment privilege. I suppose we can get to the result by saying that a criminal investigation is not a proceeding at all in the Mitchell sense or that each interview is a proceeding, so that the taxpayer can invoke the privilege in a subsequent proceeding.  But I am fairly comfortable (maybe based on lack of information) that the taxpayer could successfully assert the privilege in a later interview.

The analysis raises a more subtle issue.  What if CI agents, in a single interview (e.g., the surprise interview at his home at the start of an investigation), get some responses and then the taxpayer invokes the Fifth to answering further questions?  Has the taxpayer waived his privilege for the further questions asked in that interview, as to which he invokes the privilege.  Let's assume that, once the taxpayer invokes the privilege, the CI agents insist in going through pages of pre-prepared questions, requiring him to invoke the privilege to each.  Can the Government then get a court order compelling him to answer those questions on the notion that by answering early questions, he waived his Fifth Amendment privilege in that particular interview?  I suspect no court would order the taxpayer to answer the questions, perhaps on the notion that the criminal investigation itself is not a "proceeding" in the Mitchell sense.   Indeed, the IRM seems to suggest as much, for here are the modified Miranda warnings the CI agents are required to give at the inception of the interview (IRM 9.4.5.11.3.1.1  (02-01-2005), titled Subject of Investigation, par. 2., here.) (boldface added):

"In connection with my investigation of your tax liability (or other matter), I would like to ask you some questions. However, first I advise you that under the Fifth Amendment to the Constitution of the United States, I cannot compel you to answer any questions or to submit any information if such answers or information might tend to incriminate you in any way. I also advise you that anything which you say and any documents which you submit may be used against you in any criminal proceeding which may be undertaken. I advise you further that you may, if you wish, seek the assistance of an attorney before responding. Do you understand these rights?"

There is no qualification as to whether he has already answered any questions or otherwise proclaimed his innocence or any such conduct.  The agent "cannot compel" him to "answer any questions."  Period.  As noted below in the quote from the White Collar Crime Prof Blog:   "As Miranda v. Arizona itself says, 'If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.'  384 U.S. 436, 473-4, fn. 44."

Now, let's take it to the next stage that might be encountered in a criminal tax investigation.  What about a grand jury interrogation of a witness?  Let's take that in two stages.  First consider the proffer incident to a grand jury investigation.  Such proffers occur all the time.  Many AUSA's will offer use immunity only (not coextensive with the Fifth Amendment -- i.e., not use and derivative use immunity).  But could the Government claim that answering the prosecutors questions asked in the context of assisting the grand jury is a waiver of the Fifth Amendment privilege that would prohibit the witness from asserting the Fifth Amendment at any time thereafter in the grand jury investigation?  That would be a distortion of the process; I would be surprised if even the most aggressive prosecutors have ever made that claim.

But, what if the witness is then forced into the grand jury, answers some potentially incriminating questions, and then invokes the Fifth Amendment.  Is there then a "proceeding" in the Mitchell sense that will required the witness to answer all subsequent questions proffered in the grand jury proceedings? By a Google search, I found this DOJ web page, here, addressing the subject (although it is dated 1991 and it is unclear what the larger publication is).  The Chapter is called "Grand Jury."  And this is what it says about waiver of the Fifth Amendment (footnotes omitted, but key footnotes quoted below; bold-face added by JAT):

Waiver of the 5th Amendment privilege 

A witness who fails to invoke the 5th Amendment as to questions to which the privilege would have applied has waived the privilege as to all questions on the same subject.(37) Once a witness voluntarily reveals incriminating facts, he may not refuse to disclose the details related to those facts.(38) Once the waiver has occurred, for each question asked, the appropriate determination for a court is whether the answer demanded would subject the witness to a "real danger of further incrimination".(39)  

A witness who has previously discussed facts relevant to a grand jury investigation with an FBI agent, investigator or Government attorney may still assert the 5th Amendment privilege before the grand jury as to testimony concerning those same facts.(40) Such statements do not constitute a waiver of the privilege since intervening events may have created apprehension of potential criminal prosecution or the statements before the grand jury may be an independent source of evidence against the witness.(41)

I have not fully researched the basis for the claim that answering questions waives the privilege in a grand jury proceeding.  I did take a look at the footnotes for the boldfaced statements.  Footnote 37 simply says "Courts are often hesitant to determine that a waiver has occurred. See, e.g., In re Hitchings, 850 F.2d 180 (4th Cir. 1988)."  That footnote thus does not support the statement made in the text.  Footnote 38 cites only Rogers v. United States, 340 U.S. 367, 373 (1951).  Rogers does seem to stand for the proposition, but I am not sure that Rogers is still good law precisely on this point.  See United States v. Chase, 281 F.2d 225, 230 (7th Cir. 1960) (noting that Rogers has been frequently criticized" and "It is extremely doubtful that the holding in Rogers would be followed by the present Supreme Court.")

So, I don't know exactly where the law is on invoking the Fifth Amendment in grand juries after answering some questions.  I could not see that the Supreme Court has overruled it, but I have not undertaken the more detailed analysis to see whether it has been distinguished away or is controversial on the holding.  Perhaps some readers have done that research and can offer via comment me and other readers the benefit of their research.

Going back to the question as presented in a congressional hearing.  Certainly, at one level, the hearing is a proceeding.  But it is not like a criminal trial where the fact finder -- judge or jury -- has one shot at discerning the truth based on the evidence presented.  It seems to me that the congressional hearing is more like the IRS or FBI investigation where, at least in Ms. Lerner's case, the inquisitors are out for criminal prosecution -- preferably, the president of the United States but, failing that, Ms. Lerner will do.  As an inquisitorial investigation having potential criminal conduct within its scope, it should be subject to the same Fifth Amendment analysis as IRS and FBI investigations.  But, I suppose, they may be analogous to grand jury proceedings and, if waiver analysis applies in grand jury proceedings, I suppose it could apply to congressional proceedings.

So, the focus may really be upon whether, what Ms. Lerner said prior to invoking the Fifth Amendment waived the privilege.  Here is a good analysis from a very good, generally legal-oriented blog, The Volokh Conspiracy, titled Can A Congressional Witness Deny Guilt and Then Plead the Fifth? (5/22/13), here.  The blog's key analysis is:

The tricky part is how to characterize Lerner’s testimony before she invoked the Fifth Amendment. On one hand, if you say that Lerner merely expressed her view that she is innocent but did not actually testify as to any facts, then you could say she did not waive her rights with her statement. Questioning would not be about the details of facts she already testified to, but rather would require her testimony on a subject she declined to testify about. On the other hand, if you say that Lerner’s reciting the allegations and then denying them effectively testified about the allegations, then you could say that she did testify and did waive her rights. From that perspective, she already testified about “the subject” by saying that she did not violate any IRS rules or submit false testimony, and further questioning would be about the details of why she thinks that. 

I’m not enough of a Fifth Amendment nerd to have strong views on which side is right. So I posed the question earlier today (based on press reports of what Lerner said, not the full transcript) to a listserv of criminal procedure professors that includes some serious Fifth Amendment experts. Opinions were somewhat mixed, but I think it’s fair to say that the bulk of responders thought that Lerner had not actually testified because she gave no statements about the facts of what happened. If that view is right, Lerner successfully invoked her Fifth Amendment rights and cannot be called again. But this was not a unanimous view, it was not based on the full transcript, and there are no cases that seem to be directly on point. So it’s at least a somewhat open question.

I also note that, although some of the comments to this blog are rants by persons who appear to have an agenda other than reasoned analysis, some are pretty good.

Third, of course, if the Committee is really interested in getting true testimony (or any testimony) from Ms. Lerner, it can grant Ms. Lerner immunity coextensive with the Fifth Amendment privilege she asserted (i.e., that is use and derivative use immunity).  My suspicion is that the Committee won't do that because, I believe (this involves some speculation), the Committee is not interested in truth.  The truth she would have to say would likely disserve the political agenda of the Committee majority, hence that political agenda is better served by using her Fifth Amendment claim  to cast aspersions of misbehavior, crimes and other bad acts in a context in which she can't defend herself with the truth without substantial peril that the truth would be distorted (not just a possibility but almost a certainty in this environment).

Other Discussions of the Issue:

Lawrence S. Goldman, Did Lois Lerner Waive the Fifth? (White Collar Crime Prof Blog 5/24/13), here.

Some lawyers have criticized Ms. Lerner's counsel, William Taylor III, one of the most highly-respected criminal defense lawyers in the nation, for allowing Ms. Lerner to make an opening statement, claiming that at the very least that she placed herself at risk of waiving her constitutional privilege against self-incrimination.  See here.  Although the area of waiver of privilege is indeed murky, with cases going in different directions, I believe Ms. Lerner did not waive her right to silence by her unspecific denials.  As Miranda v. Arizona itself says, "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease."  384 U.S. 436, 473-4, fn. 44. 

* * * * 

Even though I believe that ultimately it will not be determined (or probably even litigated) that Ms. Lerner waived her privilege against self-incrimination, I wonder whether her brief declaration of innocence -- by itself unlikely to persuade anyone -- was worth the risk, however slight.  My guess -- pure guess -- is that the decision to allow her to make her brief opening statement was a compromise made between a careful lawyer and a client, like many I have represented, who adamantly desired to testify.  Of course, professional discretion would prevent Mr. Taylor from shifting any blame.

Addendum by JAT 5/25/13 7:45 pm:

The easy analogy to discuss privilege waiver is the criminal trial.  There is no question that, if the defendant takes the stand and begins to testify, he waives the privilege, the prosecution can ask follow up questions on the subject of the defendant's testimony, and the judge can order the witness to testify or take sanctions (contempt, instructions to the jury to ignore, or perhaps even permit some type of inference, whether explicitly sanctioned by the judge or not).  But, the prosecution is prohibited from calling the defendant to the stand and forcing him to claim the Fifth before the jury.  Now, consider the Oversight Committee which had subpoenaed Ms. Lerner and had been told by her counsel that she would invoke her privilege and asked to be excused from her appearance.  Under the trial analogy, she would not have been required to appear and suffer the negative effects of having to formally and publicly assert the privilege.  Unlike what would happen at a trial (where fairness and constitutional nicety must be observed), the Oversight Committee insisted that she appear, assert her privilege, and suffer the political aspersions of Committee members (hardly consistent with concerns about the Fifth Amendment).  In my view, that shenanigan was outrageous.  The Committee Chair knew she had a privilege and knew she would assert it.  The only reason to subject her to having to assert it publicly was to embarrass and play political games.  (Even then, he was not prepared to deal with the blanket assertion of the Fifth, but I will have to say that not bombarding her with questions to which she would assert the privilege was perhaps the one act of decency he showed; the more decent action would have been to not require her to attend at all; but then, decency seems to have been sacrificed for political expediency.)

Addendum by JAT 5/26/13 8:40am:

I noted above that the proper way for an interrogator to deal with a blanket invocation of the Fifth Amendment is to proceed with the specific questions the interrogator wants answered so that, if compulsion to force the answer is sought (e.g., by court order of contempt), the proper setting has been established.  The Gayle Trotter, an attorney, has this column on the Daily Collar positing the types of questions that could have been asked but were not.  Gayle Trotter, Lois Lerner takes five (Daily Caller 5/25/13), here.  Of course, as we know, the prosecution could not undertake such questioning of the defendant at trial because it would create unfair prejudice and would not in any way advance the search for truth (assuming that was the goal).  I would like to think (probably naive) that is why the Chair of the Oversight Committee did not posit that range of questions.