Thursday, March 6, 2014

Fifth Amendment and Immunity in Congressional Hearings (3/6/14; 3/11/14)

Since the Darrell Issa witch hunt is back in the news regarding Lois Lerner's invocation of her Fifth Amendment privilege, I thought I would remind readers of the following blog entry earlier when this nonsense flared up.  Invoking the Fifth - the House Oversight Inquisition (Federal Tax Crimes Blog 5/25/13), here.

I now add two excerpts from law review articles -- the first discussing assertion of the Fifth Amendment in a congressional hearing and the second discussing the congressional committee's ability to avoid the Fifth Amendment by getting immunity for the witness.  (Note that the latter is the way that Committee can get Lerner's testimony that Issa and his crew claims is so essential to the  investigation; so one obvious question is why the Committee does not obtain immunity for her; could one answer be that they know the testimony she will give is not as damaging as they can claim if she does not give the testimony; in other words, is she more useful to the conspiracy theorists by claiming the Fifth when the truth to which she would testify is not helpful to their cause?)

Kalah Auchincloss, Congressional Investigations and the Role of Privilege, 43 Am. Crim. L. Rev. 165, 193-195 (2006) (footnotes omitted).
B. Fifth Amendment in a Congressional Investigation 
1. Watkins v. United States: The 5th Amendment Lives 
As noted several times previously, individual rights did not appear to pose a limit on congressional investigatory power until after the era of abuse by HUAC. Despite the importance of the Fifth Amendment, it is interesting to observe that even this explicitly constitutional privilege was not openly recognized by the Court as available to a witness before Congress until the 1950s.  
In Watkins v. United States [354 U.S. 178 (U.S. 1957), here], the Supreme Court granted certiorari to review the conviction of a witness for contempt for declining to answer questions posed to him by HUAC.  Watkins had cited the Fifth Amendment right to remain silent as justification for his refusal to testify. The Court overturned Watkins' conviction, finding that the Bill of Rights applies to congressional hearings just as it does to courts:
It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to obtain the facts needed for intelligent legislative action. It is their unremitting obligation to respond to subpoenas, to respect the dignity of the Congress and its committees and to testify fully with respect to matters within the province of proper investigation. This, of course, assumes that the constitutional rights of witnesses will be respected by the Congress as they are in a court of justice. The Bill of Rights is applicable to investigations as to all forms of governmental action. Witnesses cannot be compelled to give evidence against themselves.
The Court also reaffirmed the inherent right of Congress to investigate, but firmly stated the limits of this investigatory power, reasserting the legislative purpose doctrine HUAC had so artfully ignored. 
The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. . . . But, broad as is this power of inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress. . . . No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress.

2. An Untouchable Right . . . Within Limits 
Despite the general applicability of the Fifth Amendment to congressional investigations, there are some significant differences between its congressional and judicial assertions. 
One key distinction is that a witness may not refuse to give testimony in front of Congress, but a defendant in a criminal trial may decline to take the stand. Specific questions posed by Congress may be avoided, but the right not to testify belongs solely to criminal defendants on trial. If a defendant testifies and is then asked questions that could be incriminating, he is given a "lose-lose" choice, which is no choice at all: either the defendant refuses to answer the particular question, pleading the Fifth Amendment (which may prejudice the jury) or he responds and self-incriminates. As there is no "defendant" on trial during a congressional investigation, there is no need to permit a witness the option to refuse to testify. Furthermore, Congress may grant immunity to a witness such that information gleaned in a congressional investigation may not be used in a subsequent criminal trial against that witness. Thus the congressional demand for information outweighs any potential right the witness may assert.  
A second difference lies with the pertinency requirement of Congress. Once again reviewing a witness's conviction of contempt for refusal to answer questions posed by HUAC, the Supreme Court heard Barenblatt v. United States. This time, the Court continued to emphasize that Congress is bound to uphold individual constitutional rights, but the Court affirmed Barenblatt's conviction, stating that "a conviction for contempt . . . cannot stand unless the questions asked are pertinent to the subject matter of the investigation." Distinguishing Watkins, the Court found that Watkins had explicitly refused to answer the questions on the basis that they were not pertinent to the investigation. Furthermore, the questions were vague, overly broad, and at times clearly unrelated to the stated purpose of the investigation.  
In contrast, Barenblatt had not referenced pertinency grounds when refusing to answer questions. The Court held that the "the citizen, when interrogated about his private affairs, has a right before answering to know why the inquiry is made; and if the purpose disclosed is not a legitimate one, he may not be compelled to answer." But, "the scope of the Committee's authority [is] for the House, not a witness, to determine, subject to the ultimate reviewing responsibility of this Court." Barenblatt had failed to cite pertinency, but more damning, Congress had made clear to the witness the relevance of the questions, eliminating any possible pertinency objection. Thus, Barenblatt's conviction stood. 
James Hamilton, Robert F. Muse and Kevin R. Amer, Congressional Investigations: Politics and Process, 44 Am. Crim. L. Rev. 1115, 1129-1131 (2007):
4. Immunity Power 
A witness called before Congress may refuse to answer questions or to produce documents on the ground that doing so would violate his or her Fifth Amendment privilege against compelled self-incrimination. Under federal law [18 USC §§ 6002, here and 6005, here], however, a house of Congress or a committee may obtain a court order compelling such testimony or production in exchange for a grant of immunity against subsequent prosecution. The relevant statute authorizes the conferral of "use" immunity, which prohibits the use of the compelled testimony or information--or any information directly or indirectly derived from it--against the witness in a criminal case. A witness who answers questions under a grant of use immunity still may be prosecuted for an offense about which he or she testifies, so long as neither the compelled testimony nor information derived from it are used in the prosecution. In addition, the statute does not protect the witness against prosecutions for perjury, false statements, or failure to comply with the immunity order.  
A federal district court will issue an immunity order upon the filing of a proper application by a house of Congress or committee. This application must show (1) that it was approved by a majority of house members present or by two-thirds of the full committee, and (2) that the Attorney General was served with notice of the intent to request the order at least ten days prior to the application. Upon the request of the Attorney General, the court must defer the issuance of the order for up to an additional twenty days. This provision is intended to provide the Department of Justice with time to consider whether the order would affect its own investigations or cases and to make its concerns known to Congress. In addition, it provides the Department with time to isolate the evidence already in its possession that could be used against the witness in a later prosecution. The isolation of such evidence is necessary because, in the event the witness is indicted, the prosecution will bear the burden of showing that its evidence was derived "wholly independent[ly]" of the testimony compelled by the immunity order.  
Because this burden is a heavy one, the conferral of immunity can create significant impediments to the successful prosecution of a witness. Such difficulties were evident during the prosecutions of Oliver L. North and John M. Poindexter following their testimony in Congress's Iran-Contra investigation. North and Poindexter were compelled to testify before Congress under grants of immunity, and both subsequently were indicted and convicted of a number of offenses. The U.S. Court of Appeals for the D.C. Circuit reversed their convictions on the ground that the defendants' immunized statements to Congress may have influenced testimony presented by the prosecution. Numerous prosecution witnesses had watched North's congressional testimony prior to testifying in his case, and many had refreshed their recollections of pertinent facts by reviewing his statements. The court of appeals held that such refreshment constituted an impermissible "use" of North's immunized testimony. It further held that the district court erred in failing to determine whether the witnesses' testimony had been "shaped, altered, or affected" by North's testimony. Similarly, in Poindexter's case, the court held that the prosecution failed to carry its burden of showing that testimony provided by North at trial had not been influenced by his exposure to Poindexter's immunized statements.  
Despite the potential for results such as these, the Attorney General cannot interfere with an immunity order requested by Congress beyond delaying its issuance. The original drafters of the statute expressly declined to provide the Attorney General with such power, noting that it could result in the obstruction of valid congressional investigations into the Executive Branch. The role of the judge to whom the request is made also is quite limited. Under most circumstances, the judge has no discretion to deny an application for an immunity order or to impose additional conditions on the grant of immunity, provided that Congress has satisfied the procedural requirements discussed above. 
One quibble.  The type of immunity described in the article above is use and derivative use immunity, which in the jargon is coextensive with the protection of the Fifth Amendment.  Technically use immunity prevents the use of the compelled immunized testimony.  Derivative use immunity prevents the use of the any fruits of the compelled immunized testimony.

Addendum 3/11/14:

The following article is pretty good on the issues involved in a federal employee asserting the Fifth in the context of Lois Lerner's assertion of the Fifth.   Charles S. Clark, Lawyers Examine Pleading the Fifth As A Federal Employee (Government Executive 3/10/14), here.

I note only two clarifications as I read the comments from the lawyers cited in the article:  First, the congressional committee alone (without DOJ) seeks the immunity order from the court.  DOJ's role is solely to slow down the issuance of the order for up to 20 days.  Second, the immunity granted is use and derivative use immunity.  If use immunity alone were given, only the testimony could not be used, but leads developed from the testimony could be used.  Use immunity is not co-extensive with the Fifth Amendment privilege.  If that were all the statute offered, it could not override the witness's Fifth Amendment privilege.  Use and derivative use immunity is required to force a witness to testify.  That is what the statute offers.


  1. ChiTownTaxAttorneyMarch 7, 2014 at 12:12 PM


    You write a fabulous blog. Stop with the personal political comments. Rep. Issa is, for sure, not someone I'd relish voting for. However, this is not a manufactured conspiracy. It may not go far beyond Lois Lerner or even the upper echelon of the IRS. But what has occurred, divined objectively from testimony, lack of testimony, and documents is appalling. This is not a criminal court, and Lois Lerner's invocation of the 5th Amendment is well deserving of an adverse inference, as it would be in any civil court.

    Maybe the committee doesn't have have the votes for immunity because of the make-up of the partisan committee? Maybe Ms. Lerner did something so terrible - something we don't know about yet - that giving her immunity is entirely undeserved. At the same time, politically oriented DOJ employees may be unlikely to prosecute her transgressions.

    "There are three things I have learned never to discuss with people: religion, politics, and the Great Pumpkin." - Linus. Keep your blog clean, accedemic, and analytical.

  2. ChiTownTaxAttorneyMarch 8, 2014 at 12:51 PM


    I think the first question is why testimony under a Congressional subpoena is entitled to criminal Constitutional protections? It is more akin to a civil proceeding. You can take the 5th in a civil case and would not generally be subject to contempt. However, the the opposing party is then entitled to an adverse inference. Why? Because on the civil side, we (i.e., the legal community) generally agree that in the civil context (1) you should tell the truth, regardless of whether it would make you civilly liable and (2) people who have nothing to hide will, or should be compelled, to testify truthfully, even if it means admitting civil liability. You have the option of taking the 5th in a civil proceeding to protect yourself against criminal liability, but it is not without its costs in the civil proceedings based upon these public policy values.

    Congress has no power to prosecute and cannot even punish anyone for contempt without going to a civil court. Why should someone testifying before Congress - a body that doesn't even have the powers of a civil court - be given special treatment that the party or witness at the local courthouse doesn't receive?

    Last, your comment that this (or 1998) is trashing a "good agency with good people" is an irrelevant opinion, although you profess to demand the facts. However, I did chuckle, and in the interest of full disclosure must ask if you are you up for a position at Treasury or DOJ? Or was it just a tip of the hat to help a current case or your practice in general? IRS has a job to do and that should be respected 100%. Institutionally, however, the Service is pathetic in every way and at every level: people, technology, process, organization, consistency, etc. While there are many good people at IRS (whom I go out my way to commend directly and to their supervisors), there are far more "not good people" blocking their way. Consequently, it is an institutional nightmare in every. We all know the stories, and the bad far outweigh the bad. "In every rumor (anecdotal story) there is a grain of truth." The weight of that scale is not on your side by bushels and bushels.

  3. Questions for you:

    1. Exactly what negative inference do you think you can fairly draw on Ms. Lerner's invocation of the fifth? Is it an inference that Obama is guilty of something? Is it that Ms. Lerner is guilty of something? What exactly do you infer that she is guilty of? Or exactly what conduct do you infer by negative inference she did? Please be specific.

    2. Let me state this in another way. In a civil case, the issue is whether Fact A exists and whether the proponent of the burden of persuasion has shown the existence of Fact A. Let's say that the defendant in the civil case claims that Fact A does not exist and it is within his or her personal knowledge to know whether Fact A exists and he or she does not testify based on the Fifth Amendment, then there might be a negative inference -- just an inference -- that Fact A exists that might permit the fact finder to infer the existence of Fact A and permit the plaintiff to prevail. That is simply because the case has to get resolved and the inference permits a resolution that is the best under all the circumstances.

    3. I want to know exactly what the Fact A is that you imagine is in issue in a congressional investigation not designed to resolve disputes so that justice -- albeit imperfect justice -- can be done but to gather the facts. Issa should not care whether Fact A exists or does not exist. He should desire only to know whether Fact A exists or does not exist and the let the consequences fall where they may.

    4. So what exactly is the fact A that you want to infer when the only issue is when there is no dispute to resolve. Let's go back to the seminal case involving the invocation of the Fifth Amendment in congressional hearings -- the HUAC / McCarthy days. Is it your claim that we should infer that those people are communists or spies from the invocation of the Fifth Amendment. I thought out country had resolved that issue a long time ago. But apparently HUAC and McCarthy still have their true believers in the country.

    5. I am not up for a position at Treasury, IRS or DOJ Tax. But, I would be proud to serve in a position at any of those agencies. I did serve at DOJ Tax and was proud of my service to this country. And I was proud to represent the IRS in court. The IRS is a great agency with many good people. Not all behave perfectly, but in the context of a large organization on a limited budget, the agency and the people serve this country well, very well.

    6. I believe that people who vilify the IRS rather than trying to recognize the good and bad and fix the bad are doing this country a great disservice. Most of these same people castigating the IRS would be offended if we judged their pet agencies -- take the military that the tea party IRS trashers claim to love. Can we judge the whole agency and the good people serving this country in the military because of some bad -- very bad people -- who abuse their positions in the military. I dare say that, in terms of misbehaving, the IRS is no worse than the military or any other large government agency. What we should do is to try to make all agencies and their personnel better at the necessary tasks that they perform in service to this country and the people of this country.

    7. I don't think you have anything other than ideology -- and perhaps some selected anecdotal instances of bad behavior -- to back up your claim that there are far more "not good people" in the IRS blocking the good people. I have represented the IRS at DOJ Tax and have dealt with the IRS for years. Based on my experience, I believe your claim is false. I don't doubt that you believe it. Your belief does not make the claim true. I challenge you to find any credible practitioner group (ABA Tax Section, CPAs, etc.) who would back your claim.

    Jack Townsend


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