Lois Lerner’s price for testimony: Immunity

Experts disagree about whether Lerner waived her Fifth Amendment right. | John Shinkle/POLITICOse


Embattled IRS official Lois Lerner will not testify before the House Oversight and Government Reform Committee unless she’s given immunity from prosecution, her lawyer told POLITICO Tuesday.

“They can obtain her testimony tomorrow by doing it the easy way … immunity,” William W. Taylor III said in a phone interview. “That’s the way to resolve all of this.”

The comments reflect the hard-line approach Lerner, the former head of the IRS division that scrutinized conservative groups, and her legal team are taking in defending her role in the agency’s scandal.

(PHOTOS: 10 slams on the IRS)

Taylor, a founding partner of Zuckerman Spaeder LLP, is even shrugging off the possibility that the full House might vote to hold Lerner in contempt.
“None of this matters,” he said. “I mean, nobody likes to be held in contempt of Congress, of course, but the real question is one that we’re fairly confident about, and I don’t think any district judge in the country would hold that she waived.”
The oversight panel voted along party lines last week that Lerner waived her Fifth Amendment rights at a May 22 hearing when she boldly declared her innocence in the IRS scandal and said she violated no laws — then invoked her constitutional protections to ward off self-incriminating questions from lawmakers.
Republicans immediately argued that Lerner forfeited her Fifth Amendment right by speaking and they should be allowed to question her opening statement.

(PHOTOS: Fifth Amendment use on the Hill)

Legal experts disagree about whether she actually did.
But in the eyes of the committee, Lerner — who was placed on administrative leave after refusing the new IRS leader’s request to resign — is obligated to now answer questions related to her earlier statement.

“The committee is entitled to Ms. Lerner’s full and truthful testimony without further conditions,” said panel spokesman Frederick Hill in a statement to POLITICO. “If, however, Ms. Lerner’s attorney is interested in discussing limited immunity, the committee will listen.”

Rep. Jim Jordan (Ohio), a senior oversight Republican helping oversee the IRS investigation, said the panel is still hopeful she’ll come to the committee on her own free will, arguing that questions of immunity and contempt are “down the road.”

(PHOTOS: 8 key players in IRS scandal story)

“We hope she comes in and gives us the truth and answers questions,” Jordan said in a brief phone interview Tuesday. “If that doesn’t happen, then you cross the next bridge. … If she says, ‘No, I’m going to come in and assert my Fifth Amendment rights again and not going to speak,’ then you think about what the other options are.”

Oversight Republicans have not yet decided when or how to recall Lerner, but if she refuses to answer questions on her proclamation of innocence, they say she could face contempt charges.

Taylor, however, said he is not afraid of that threat and is willing to take the issue to federal court if necessary.

(WATCH: Lois Lerner pleads the fifth)

If Lerner is held in contempt, Taylor notes that a federal judge will have the final say about whether she waived her constitutional protection. That’s because criminal contempt charges go to the U.S. attorney for the District of Columbia for potential prosecution.

The Oversight committee, chaired by Rep. Darrell Issa (R-Calif.), could initiate civil proceedings against Lerner on its own initiative.

But such an option would delay Lerner’s testimony for months, if not longer, lessening her value to the panel’s IRS probe.

Even if Lerner is found in the wrong, she’ll simply testify and it won’t be a huge deal, Taylor says.

“If the court finds that she didn’t waive, then it’s over, and if the court finds that she did and orders her to testify, then she goes to testify,” Taylor said, later, adding that there is “no danger under any circumstances of her going to jail.”

But Donald Wolfensberger, a congressional expert and head of the Woodrow Wilson International Center for Scholars’ Congress Project, disagrees and says Lerner could end up behind bars.

“In the House, it’s criminal contempt only,” he said.

So if the court agrees with the House’s contempt charge she could get “up to a $1,000 fine and up to a year in jail,” he said.

Robert Walker, former chief counsel for both the House and Senate ethics committees, agreed with Taylor’s assertion that Lerner didn’t waive her rights.

“The question of whether in this setting, in a congressional hearing where the witness has been forced to testify, I think the weight of the authorities indicates there is some leeway for the witness to make some statement — some very general statement, provided it doesn’t get into specific facts — there is some leeway for a witness to do that before they can be said to have waived their Fifth Amendment privilege,” Walker said.

In a 1958 Supreme Court case on the Fifth Amendment, the high court noted that the defendant “relies on decisions holding that witnesses in civil proceedings and before congressional committees do not waive the [Fifth Amendment] privilege by denials and partial disclosures, but only by testimony that itself incriminates.”

And witnesses in previous hearings — for instance, in hearings on organized crime in the 1950s — have issued broad statements denying any wrongdoing, while then asserting their Fifth Amendment rights, a move later upheld by a federal court, according to legal records and press reports.

But Alan Dershowitz, a Harvard Law School professor and defense attorney during O.J. Simpson’s criminal trial, says Lerner’s statement was not broad but specific and, if he were her lawyer, he “would never had allowed” her to say what she did.

He thinks she waived her right not to answer questions only related to her opening statement but contends that the panel has no legal standing whatsoever for saying she must answer questions on the entire IRS investigation as a whole.

Wolfensberger doesn’t think the matter will necessarily get to court. That’s because the Justice Department doesn’t have to take the matter there, he said.

“There’s nothing that obligates the executive branch to move forward and to take a [criminal contempt] case to court,” he said — adding that that’s exactly what happened when the House held Attorney General Eric Holder in contempt last spring. The Justice Department and the oversight committee are now engaged in a legal battle in federal civil court.

The Bush administration also fought the House Judiciary Committee in federal court over the issue of whether senior presidential aides are covered by executive privilege and can be subpoenaed to testify. The two sides eventually reached a compromise agreement after the House held both in contempt.

The Justice Department would have another reason for passing on a criminal case against Lerner, Wolfensberger said: They’re doing their own investigation into the IRS scandal.

“The Justice Department would probably say, ‘We have a conflict here because this is under criminal investigation so this will be defeating our own purposes by trying to pursue this further.’”

Legal experts told POLITICO the more likely possibility is the panel and Taylor come to an agreement about immunity, which would need to be approved by the full Oversight committee.

Hill said the panel is open to pitches from Taylor about “limited” immunity that would allow her to testify without fear that her answers could be used against her.

“They can always reach out to the committee and basically begin the discussion about a limited immunity agreement,” Hill said.

But the oversight panel has not reached out to Taylor — and Taylor is not reaching out to them.

“If they had some interest in having her testify, they would certainly call me … because I don’t have anything to propose to them,” Taylor said.