The IRS scandal I wrote about last week now has a new twist: Louis Lerner, the officer responsible for scrutinizing Tea Party 501(c)(4) applications, invoked her Fifth Amendment right against self incrimination on the stand in front of a house congressional meeting. Her invocation came after House Speaker John Boehner stated that he wanted to know “who was going to jail.” But, her invocation also came after she had taken the stand.
The Fifth Amendment to the U.S. Constitution provides that a person shall not be “compelled in any criminal case to be a witness against himself.” While generally a civil proceeding like a Congressional hearing is one where a person could be subject to civil penalties, civil penalties are not a basis for invoking the Fifth Amendment, according to Kastigar v. U.S. To that point, if the testimony would disclose that Lerner intentionally targeted conservative anti-tax groups, and that testimony would expose her to infamy, public disgrace, or opprobrium, the Fifth Amendment still could not be invoked.
However, if there are threats of criminal charges (like the threats of Boehner), and those threats are not remote, then Lerner has the right to invoke the Fifth Amendment. Furthermore, the Court would be required to provide Ms. Lerner with wide latitude if she would admit as to the reasoning and character of the potential harm (something that would be nearly unnecessary, given Boehner’s articulated objective).
The point that many conservative pundits continue to harp on is the fact that, once a Defendant has taken the stand, that Defendant cannot invoke the Fifth Amendment right on cross examination because the privilege is waived. What these pundits fail to realize is that this rule is only true in a criminal context at a criminal trial, not in front of a Congressional hearing.
Since a Congressional hearing is a civil hearing, the rule of wide latitude applies. In the future, if Ms. Lerner wishes to invoke the Fifth after Boehner takes out a warrant, she needs to stay off the stand.