Lerner and Immunity: Dershowitz is Wrong

 Posted on May 23, 2013 in Uncategorized

Alan Dershowitz says that Lois Lerner can be held in contempt for taking the Fifth in response to questions asked by Congress after making prefatory comments about the same subject matter:

"You can't simply make statements about a subject and then plead the Fifth in response to questions about the very same subject," the renowned Harvard Law professor said."Once you open the door to an area of inquiry, you have waived your Fifth Amendment right... you've waived your self-incrimination right on that subject matter."

Scott Greenfield says he reluctantly agrees with Dershowitz.

Much as I am of the view that the sweep of the Fifth should be broad in order to fulfill its purpose, I am also of the view that once a witness offers denials to particulars, she opens herself to being questioned on what particulars she's denying. Which rules and regs is she referring to? What about this statement? What about that? Isn't it true that you said.... Well, that's how examination happens sometimes.

Dershowitz is wrong, and Greenfield has missed the point (as has Volokh*). When subpoenaed to testify before Congress, you can simply make statements about a subject and then plead the Fifth in response to questions, and there's not a damn thing Congress can do to you. Whether Lerner has waived her privilege by making statements is entirely irrelevant to what happens next.

Congress has delegated to the courts the power to punish people for contempt of Congress. There is actually a statute, 2 USC 192, governing a person's refusal to answer pertinent questions, as well as caselaw:

Our view that a clear disposition of the witness' objection is a prerequisite to prosecution for contempt is supported by long-standing tradition here and in other English-speaking nations. In this country the tradition has been uniformly recognized in the procedure of both state and federal courts. It is further reflected in the practice of congressional committees prior to the enactment of s 192 in 1857; a specific direction to answer was the means then used to apprise a witness of the overruling of his objection. Against this background s 192 became law. No relaxation of the safeguards afforded a witness was contemplated by its sponsors. In explaining the bill in the House, Congressman Davis expressly stated that committee powers were not increased, that no added burden was placed upon the witness and that a ‘mere substitution' of a judicial proceeding for punishment at the bar of Congress was intended. The reason for enacting s 192 went to the punishment and not the offense. It was recognized that the power of Congress to deal with a contemnor by its own processes did not extend beyond the life of any session. By making contempt of Congress a crime, a fixed term of imprisonment was substituted for variable periods of congressional custody dependent upon the fortuity of whether the contemnor had been called to testify near the beginning or the end of a session. But there is nothing to indicate that this change in the mode of punishment affected in any way the well-established elements of contempt of Congress. Since the enactment of s 192, the practice of specifically directing a recalcitrant witness to answer has continued to prevail.

Quinn v. United States, 349 U.S. 155, 167–69 (1955).

Before Lerner can be held in contempt for taking the Fifth, Congress must direct her to answer despite her objection. (Just like court, or a grand jury.) (It appears that someone has explained the law to Representative Darrell Issa, who intends to recall Lerner and, I suspect, specifically direct the recalcitrant witness to answer.)

The selective invocation of the Fifth, discussed by Greenfield and Dershowitz and others, is a red herring. If I am a witness in court, before a grand jury, or before Congress, I get to decide whether to take the Fifth. I don't have to show good faith and nobody can second-guess me. "I take the Fifth" is a magic phrase with legal power. It might be nice for AUSAs to pretend that I can only take the Fifth in response to questions that, as Greenfield says, have a "good faith potential to incriminate," but it's a fantasy. As a matter of fact, as a witness I can take the Fifth for any reason or none at all.


  1. If I refuse to answer a question on grounds of my Fifth-Amendment privilege and a court does not order me (or Congress does not direct me) to answer the question, I cannot be held in contempt or otherwise punished.

  2. If I refuse to answer a question on grounds of my Fifth-Amendment privilege, a court orders me (or Congress directs me) to answer the question, and I do not answer the question, I can be held in contempt of Congress or the court.

  3. If I refuse to answer a question on grounds of my Fifth-Amendment privilege, a court orders me (or Congress directs me) to answer the question, and I answer the question, I cannot be held in contempt or otherwise punished for taking the Fifth.

As a practical matter, I can take the Fifth in response to any question ("what color tie am I wearing?"). If someone asks me to justify taking the Fifth, I can take the Fifth. until I am ordered to answer, I cannot be punished for taking the Fifth.

If I am ordered (or directed by Congress) to answer the question and I answer the question, I have effectively been given use immunity for that answer. Why? Because the answer is compelled-I had to choose between answering and being punished-and compelled testimony cannot be used against me.

Can Lerner be "questioned on what particulars she's denying"? Sure she can. And in response to questioning she can take the Fifth.

Whether Lerner can be-or is-ordered to answer a particular question does not depend on whether she has "opened the door" or offered denials to particulars; it doesn't depend on whether she had a good-faith reason for taking the Fifth; it doesn't depend on whether she has "waived" the privilege. It depends only on whether the court or the Congress is willing to immunize her to get an answer.

(If Dershowitz were right, and Lerner could be held in contempt for simply taking the Fifth, all testimony before Congress would be compelled by Section 192, and therefore would be effectively compelled and legally immunized.)

Look for Issa to recall Lerner, for him to ask her a question, for her to take the Fifth, and for him to direct her to answer the question. At that point, if she answers her answer cannot be used against her. If she does not answer, she can be prosecuted (2 USC 194 requires Congress to refer the case to a U.S. Attorney to take before a grand jury) for the misdemeanor contempt of Congress (she gets a jury trial, since she could be imprisoned for more than six months). If she refuses to answer after being directed, though, Issa won't stop there. She and Issa will repeat the routine with every question he wants to ask, each of which is prosecutable as a separate offense.

The pundits have made much of the advice that Lerner's lawyer gave her. Here's Greenfield:

No doubt her lawyer, William Taylor III, thought long and hard about her opening statement, how far it should go, how far it can go, before Lerner took one step too far. It's not an easy decision, given that there is no clear line. Some might have counseled Lois Lerner not to step anywhere near the line so that there would be no question of waiver. Some might push the envelope, allowing her to toe the line as closely as he thought possible. And when the second option is chosen, maybe a toe goes over the line.

And here's Dershowitz

He said the fact that Lerner went ahead with her proclamation of could be considered malpractice on the part of her attorney - although it's possible she overruled the advice she received."It should never have been allowed. She should have been told by her attorney that the law is clear, that once you open up an area of inquiry for interrogation, you have to respond," he said.

I'm no pundit, just a humble trench lawyer, but in Taylor's tasseled loafers I might have advised Lerner to do exactly what she did: put your innocence on the record, and then take the Fifth. The worst that can happen is that you get directed to answer, and then we have to decide whether you do so (with immunity) or risk going to jail. In the meantime, maybe something shiny catches Darrell Issa's eye and he moves on to something else.

In fact, as a courtroom lawyer I disagree outright with Dershowitz's suggestion (has the man ever had to make a living thinking on his feet?) that advice to do what Lerner did might be considered malpractice. To the contrary, allowing her to answer the committee's questions without being compelled would have been the malpractice: if she had done so, the answers might in the future be used against her in a criminal prosecution in ways that he cannot now foresee. But advising her to take the Fifth, he ensures that this will not be the case.

(Yes, I've written about this time after time after time after time; I'm the Johnny Appleseed of the Fifth Amendment.)

*Volokh and Greenfield quote dicta (that is, language not necessary to the decision) from Mitchell v. United States for the proposition that a witness cannot selectively take the Fifth. The dicta are based on: a) Rogers v. U.S., in which the witness took the Fifth only as an afterthought after she was dragged before a judge for refusing to answer for other stated reasons; and b) Brown v. U.S., in which the witness was held in contempt for refusing to answer questions even after a judge ordered her to.

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