Analysis: Lois Lerner Can Be Held in Contempt for Her Failure to Testify

While Lois Lerner’s reassertion of the Fifth Amendment, as well as the confrontation between Committee Chairman Darrell Issa (R–Calif.) and Rep. Elijah Cummings (D–Md.), soaked up all of the media coverage of the IRS scandal last week, one interesting news item did not get much attention: the revelation by Lerner’s attorney, William Taylor III, that Lerner had given “a lengthy interview to Justice Department prosecutors within the last six months.” Even more surprising was Taylor’s admission that Lerner gave DOJ her testimony without getting any immunity from prosecutors.

If that is true, the former IRS official’s reassertion of the privilege against self-incrimination at the March 5 hearing of the House Committee on Oversight and Government Reform is problematic. While the prevailing rule in most federal courts is that a waiver of the Fifth Amendment privilege at one proceeding does not carry through to another proceeding, that is not the rule in the District of Columbia.

In Ellis v. U.S. (1969), the D.C. Court of Appeals specifically refused to adopt that rule, saying it was “unsound.” As the court held, “once a witness has voluntarily spoken out, we do not see how his protected interest is jeopardized by testifying in a subsequent proceeding, provided he is not required to disclose matters of substance which are unknown to the Government.” Under those circumstances, the court held, a person can reassert the privilege only if there is a “real danger of further criminalization.”

Ellis involved a defendant who voluntarily testified before a grand jury but then refused to testify at trial, asserting his Fifth Amendment privilege against self-incrimination. Similarly, if Lerner—without receiving a grant of immunity—voluntarily spoke to Justice Department prosecutors and/or FBI agents involved in investigating IRS targeting of conservative groups, she cannot now invoke the privilege to avoid answering congressional questions that would require her to give the same information she has already provided to criminal investigators.

The Wall Street Journal reports that Taylor said he allowed his client to talk to DOJ because he had “every confidence” that prosecutors are fair-minded and haven’t prejudged the facts. In contrast, Taylor claimed that GOP committee members only want to “vilify” Lerner. But as any competent criminal defense lawyer can attest, you can’t assert the Fifth Amendment to avoid being “vilified”; you can assert it in a congressional setting only to prevent your hearing testimony being used against you in a criminal prosecution by the government. And in the D.C. Circuit, unlike every other circuit, you cannot assert the Fifth Amendment to avoid giving the same testimony that you have already provided to the government.