“I'm Not A Lawyer, But ...” : Right-Wing Media Disagree With Legal Experts On Fifth Amendment

Right-wing media figures argued that Internal Revenue Service official Lois Lerner waived her Fifth Amendment rights at a congressional hearing by declaring her innocence before invoking those rights. By contrast, legal experts say Lerner's statement did not negate her constitutional protections.

Right-Wing Media: Lerner “Clearly Gave Up Her Fifth Amendment Right”

Fox's Napolitano: Fifth Amendment Is “An All-Or-Nothing Proposition.”  On the May 22 edition of Fox News' Your World with Neil Cavuto, Fox senior legal correspondent Andrew Napolitano claimed that by giving a statement at the hearing declaring her innocence, Lois Lerner waived her Fifth Amendment protections in part or in full:

NAPOLITANO: Look, there's a couple ways to look at this. The Fifth Amendment has been interpreted by the courts -- that's the amendment that says you don't have to testify against yourself -- as an all-or-nothing proposition. You either give no testimony other than saying who you are, or you answer all questions truthfully. If witnesses were permitted to pick and choose which question to answer, then they would control the forum rather than the questioner. So she either waived her Fifth Amendment right by making her statement -- meaning she now has to answer everything -- or she certainly waived her Fifth Amendment right about the statements she made. So when she said: “I didn't do anything wrong. I didn't break any laws. I didn't violate any IRS procedures,” she waived her Fifth Amendment right on those three categories -- anything wrong, federal laws, IRS procedures. And the House of Representatives can go around the corner to a federal judge, not far from where I am now, and get an order directing her to answer their questions on those three subject matters because she volunteered to say that before she invoked the Fifth Amendment protection. [Fox News, Your World with Neil Cavuto, 5/22/13]

Fox's Krauthammer: “I'm Not A Lawyer, But” Lerner “Clearly Gave Up Her Fifth Amendment Right.”  On the May 22 edition of Fox News' Special Report, Fox contributor Charles Krauthammer claimed that Lerner waived her Fifth Amendment right after making a brief statement expressing her innocence:

KRAUTHAMMER: But I'm just astonished by how weakly and with such uncertainty [Rep. Darrell] Issa (R-CA) handled that. I mean I'm not a lawyer, but it is clear that if she makes a statement, a substantive statement on all of these things, and then says “but, I'm not going to answer your questions” that [Rep. Trey] Gowdy (R-SC) is right. You can't have it one way, speak on the issue and then say “I'm not going to answer your question.” She clearly gave up her right -- the Fifth Amendment right -- if not entirely, at least on the things she said: “I didn't break any laws. I didn't break any of the regulations. I did nothing wrong.” On those she must speak with the committee. [Fox News, Special Report with Bret Baier, 5/22/13]

Limbaugh: “The Fifth Amendment Is Not Intended To Be Used As A Shield.”  On the May 22 edition of his radio show, Rush Limbaugh argued that Lerner's statement waived her Fifth Amendment rights:

LIMBAUGH: It is as I thought: the Fifth Amendment is not intended to be used as a shield. The Fifth Amendment is simply there to make sure they prove it. You do not have to incriminate yourself, but once you assert your innocence and once you say you didn't do anything wrong, you can't then use the Fifth Amendment to say “I'm not answering questions.” [Premiere Radio Networks, The Rush Limbaugh Show, 5/22/13]

Fox's Gasparino: “I Don't Know How You Get Away With Taking The Fifth After You Start Defending Yourself.”  On the May 23 edition of Fox & Friends, Fox Business Network senior correspondent Charlie Gasparino claimed that Lerner should be held “in some sort of contempt” for issuing a statement of innocence before invoking her Fifth Amendment rights:

GASPARINO:  That was bizarre. I mean I don't know how you get away with taking the Fifth after you start defending yourself. If this was a court of law you'd be held in contempt or something like this. It's a congressional panel. They should bring her back and hold her in some sort of contempt and get her to fess up here exactly who knew what where. What is really scary about this is that it shows you how bad and insane big government is. The guys on the top starting with the president, we don't know what happened down here. It shows you that if you were out there and you voted for this president and his economic agenda how unaccountable it is because he wants this big government where he doesn't have to account for anything. [Fox News, Fox & Friends, 5/23/13]

Fox's Doocy: Lerner “Took The Fifth, And Now She Will Have To Face The Music.”  On the May 23 edition of Fox News's Fox & Friends, co-hosts Steve Doocy and Gretchen Carlson claimed Lerner will “have to face the music” for her “serious and profound and almost unheard of error” :

DOOCY: So, the big question is: did she waive her Fifth Amendment rights by giving an opening statement? Legal experts say it could be interpreted as a subject matter waiver, where she made factual statements and then tried to clam up. But you got to wonder: you know, Lois [Lerner] has been before Congress a number of times, why is she afraid of telling the truth? [...] Lois should've just sat there and told the truth, but instead she took the Fifth and now she will have to face the music.

CARLSON: Well, since I'm not a lawyer -- I always wanted to be one -- but I consulted Judge Andrew Napolitano this morning. Here's what he said about it: “It was a serious and profound and almost unheard of legal error. She can now be compelled to answer questions about the substance of the denials she uttered before she invoked the Fifth Amendment privilege.” And that's what Darrel Issa believes. He's now possibly going to subpoena her and hold her in contempt, if she does not come back and answer questions.  [Fox News, Fox & Friends, 5/23/13]

Fox's Van Susteren: Lerner's Statement Was “Probably One of the Dumbest Things She Could've Done.”  On the May 22 edition of Fox News' On The Record with Greta Van Susteren, the host claimed Lerner is now in a position where courts could “compel her to testify” because of her broad statement of innocence:

VAN SUSTEREN: You know, I've gone back and forth all day long, whether you're right or wrong -- you're right or you're wrong -- and then it occurred to me that this is probably one of the dumbest things she could've done. And her lawyer, who I know, probably advised -- because if you think about it, is that all she had to do was go in here, take the Fifth, leave the building, and she could've said the same thing on the steps of the United States Capitol. Everyone in the media would've followed it, we would've all been replaying it, and then she wouldn't be in this position where you guys are thinking about going to court to compel her to testify as a waiver.

GOWDY: That, or have her lawyer read her statement or post it on Facebook. She had a lot of options, but she didn't choose any of those. She came, as you noted, came to our committee hearing under subpoena, took the oath. She had already warmed us she might invoke, and then she testified. I mean, what she did was testimony. So my question to Chairman Issa is: when do we get our chance? You say you didn't lie to Congress, you say you didn't break any IRS rules. Let us decide that. Let us ask you some questions. Chairman Issa has got a couple different options at his disposal, one of which is to bring her back tomorrow. I promise you, Greta, if she comes back tomorrow she will invoke, which will then set up a contempt analysis. [Fox News, On the Record with Greta Van Susteren, 5/22/13]

Breitbart.com's Pollak On Lerner's Remarks: “An Opening Statement On Record ... Would Waive Her Rights.”  In an update to a May 22 article, Breitbart.com editor-in-chief and former Republican nominee for Congress Joel Pollak claimed that Lerner's “opening statement” disqualified her from Fifth Amendment protections:

It is possible that Lerner anticipated an eventual subpoena and therefore chose to place an opening statement on record even though doing so would waive her rights. She has been accused of lying to Congress. [Breitbart.com, 5/22/13]

Actual Legal Experts: Lerner's Statement Doesn't Negate Her Rights

Fifth Amendment Expert: “Select Invocation” Such As Lerner's Happens “All The Time.”  In a May 22 article, New York magazine's Dan Amira and Regent University Fifth Amendment expert James Duane explained that Lerner's statement is not in fact a waiver of her constitutional rights, and that such statements occur frequently in congressional hearings:

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.” [New York5/22/13]

WSJ: Legal Expert: “A Denial Is Different Than Disclosing Incriminating Facts.”  A May 22 article on The Wall Street Journal's Law Blog explains that while Lerner's remarks exist in a legally ambiguous space, legal experts say “it didn't seem that Ms. Lerner disclosed any incriminating facts that would demand further explanation” :

Ms. Lerner, who was subpoenaed to testify, wasn't taking the stand at a criminal trial. But it's generally accepted that the same protections apply in congressional investigations.

To guard against distorted testimony, courts have held that you can't selectively invoke the privilege by picking and choosing the details that you disclose.

But it's never been clearly articulated exactly what constitutes a waiver of privileges in this situation, Andrew D. Leipold, a professor of criminal procedure at the University of Illinois College of Law, told Law Blog.

The same issue came up in 2002, when Bernard Ebbers, the former chief executive of WorldCom, rankled members of the House Financial Services Committee when he asserted his Fifth Amendment rights after declaring himself innocent of criminal conduct and defending his role at the company in brief prepared remarks. He was never charged with contempt of Congress.

But while it would have been safer for Ms. Lerner to not saying anything, it's doubtful that Ms. Lerner went too far in her opening remarks, legal experts said.

Yale Kamisar, a retired University of Michigan law professor who is an expert on criminal procedure, said it didn't seem that Ms. Lerner disclosed any incriminating facts that would demand further explanation.

“A denial is different than disclosing incriminating facts,” he said. “You ought to be able to make a general denial, and then say I don't want to discuss it further,” he said. [The Wall Street Journal5/22/13]

Former Harvard Law School Dean: Fifth Amendment Holds In Criminal Court, Why Not In “Legislative Inquiry” ? A May 22 article at The Guardian's U.S. News blog recounts America's complex history with the Fifth Amendment, citing an essay by legal scholar Erwin Griswold. While the contexts differ, Griswold's argument for the Fifth holds:

A Harvard law school dean, Erwin Griswold, mounted the seminal defense of the practice in a 1954 essay titled The Fifth Amendment: An Old and Good Friend. Revolted by the personal destructiveness of the McCarthy era, Griswold drew a comparison between criminal courts and congressional hearings:

In our criminal courts, we would never think of requiring an accused person to answer questions. He doesn't have to take the stand at all, and if he does do so, he has the protection of an impartial judge, and the right to have his counsel speak in court on his behalf. Why should it be so different in a legislative inquiry, when the information that is sought relates to the witness' own conduct? [The Guardian5/22/13]