Tom Williams/CQ Roll Call/Newscom

Tom Williams/CQ Roll Call/Newscom

It is not clear that Lois Lerner, the embattled head of the IRS’s tax-exempt organizations office, waived her Fifth Amendment right against self-incrimination, as has been suggested by commentators including Harvard Law Professor Alan Dershowitz, when she briefly appeared before the House Oversight Committee investigating the targeting of conservative organizations.

Lerner proclaimed her innocence before asserting her Fifth Amendment right not to incriminate herself and refusing to answer any questions from members of the committee. She then walked out of the hearing room. Lerner said this:

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.

If this were a criminal prosecution, this would probably be an easier call. As the U.S. Supreme Court explained in 1951 in Rogers v. United States, a case involving a federal grand jury investigation of the Communist Party of Denver, a witness can waive her Fifth Amendment right against compelled self-incrimination by failing to assert it in a timely manner. That is why criminal defense lawyers advise their clients to provide their names to investigators but not answer any other questions. If after an investigation, Lerner had voluntarily agreed to testify in a criminal case brought against her by the Justice Department, no court would allow her to invoke the Fifth Amendment to avoid answering questions from prosecutors during cross examination about her assertions during direct testimony that she had not done anything wrong, broken any laws or IRS rules, or provided false information to Congress.

But Lerner’s testimony was compelled by a subpoena. Furthermore, a congressional hearing is a civil proceeding, not a criminal prosecution. There is no question that the right against self-incrimination can be asserted in any civil proceeding, including a congressional hearing, whenever an answer in a deposition or direct testimony might subject the individual to criminal prosecution.

But would a court enforce the waiver rules as strictly in a civil proceeding such as a congressional hearing as in a criminal case? Probably not.

Lawyers usually allow their clients to answer questions in civil matters except for questions that raise potential criminal implications, in order to avoid having their client held in contempt for asserting the Fifth Amendment on matters in the civil proceeding that could not possibly be grounds for criminal prosecution. That is called “selective invocation.” Most courts that have applied the Rogers test have erred on the side of permitting a witness and her counsel to determine when an answer will incriminate the witness.

Rather than finding waiver and compelling a witness to testify, courts traditionally employ other remedies in a civil context. They will allow the decision-maker (be it a jury or, in this case, Congress) to draw an adverse inference from the privilege invocation or will strike the self-serving testimony that was offered prior to the invocation from the record. In 1981 in Klein v. Harris, the Second Circuit Court of Appeals held that waiver is not to be “lightly inferred” and that “every reasonable presumption against finding waiver” should be indulged.

Orin Kerr, a professor and expert on criminal procedure at George Washington University Law School, points out that “the tricky part is how to characterize Lerner’s testimony before she invoked the Fifth Amendment.” Was she simply expressing her opinion that she is innocent? Or was she asserting actual facts about a matter that could subject her to criminal prosecution by the Justice Department?

That difference is the key to a court’s eventual determination of whether Lerner waived her Fifth Amendment rights. Lerner’s short statement is open to interpretation on that issue, and there does not seem to be any clear-cut answer, which is all too often the case in the law.