Constitutional Law

IRS official took Fifth in House testimony, but did she waive right to do so?


After invoking her Fifth Amendment right not to testify Wednesday, when she was called before a House committee looking into special Internal Revenue Service scrutiny of tax exemptions sought by conservative groups, an IRS official was put on administrative leave Thursday.

But some observers are questioning whether Lois Lerner, who is in charge of the IRS division on tax-exempt organizations, waived her right to take the Fifth by making a statement prior to her refusal to testify, according to the National Law Journal (sub. req.) and the Washington Post.

A New York Times (reg. req.) story discusses the IRS response to Lerner’s testimony.

“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,” she told House Oversight and Government Reform Committee members before asserting her right to remain silent on Wednesday. An ABC News article gives more details about what she said.

Whether Lerner’s statement would constitute a subject-matter waiver of the Fifth Amendment privilege depends on a number of factors, attorney Stanley M. Brand told the Post.

But, as a preliminary matter, she would have to be held in contempt, which has not occurred, and a judge would have to agree and enforce the issue, he said. “The question would be whether she made statements about the factual substance of the subject, but courts will be loath to divest someone of their rights absent a clear and unequivocal waiver.”

Attorney William W. Taylor, who represents Lerner, says no waiver occurred. “The law is clear that a witness does not waive her Fifth Amendment rights not to testify as to facts by asserting that she is innocent of the wrongdoing with which she is accused,” he told the newspaper in an email.

See also

ABAJournal.com (May 15): “Obama says acting IRS chief will resign amid news that conservative groups were scrutinized”

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