Lerner walks on contempt charges

It's reported today that as he left office, the U.S. attorney for the District of Columbia decided not to indict Lois Lerner for refusing to testify before Congress after first expressing her innocence.

The question was always a close one, and I cannot say that Manchin's decision was incorrect.  Orin Kerr discussed this point at the time:

I don’t think the answer is clear, as there are no cases quite like it. The general rule is that a witness can’t testify about her version of the facts and then invoke the Fifth Amendment when facing cross examination. Here’s what the Court said in Mitchell v. United States, 526 U.S. 314, 321(1999)

It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. See Rogers v. United States, 340 U.S. 367, 373 (1951). The privilege is waived for the matters to which the witness testifies, and the scope of the “waiver is determined by the scope of relevant cross-examination,” Brown v. United States, 356 U.S. 148, 154—155 (1958). “The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry,” id., at 155. Nice questions will arise, of course, about the extent of the initial testimony and whether the ensuing questions are comprehended within its scope, but for now it suffices to note the general rule.

The tricky part is how to characterize Lerner’s testimony before she invoked the Fifth Amendment. On one hand, if you say that Lerner merely expressed her view that she is innocent but did not actually testify as to any facts, then you could say she did not waive her rights with her statement. Questioning would not be about the details of facts she already testified to, but rather would require her testimony on a subject she declined to testify about. On the other hand, if you say that Lerner’s reciting the allegations and then denying them effectively testified about the allegations, then you could say that she did testify and did waive her rights. From that perspective, she already testified about “the subject” by saying that she did not violate any IRS rules or submit false testimony, and further questioning would be about the details of why she thinks that. 

I’m not enough of a Fifth Amendment nerd to have strong views on which side is right. So I posed the question earlier today (based on press reports of what Lerner said, not the full transcript) to a listserv of criminal procedure professors that includes some serious Fifth Amendment experts. Opinions were somewhat mixed, but I think it’s fair to say that the bulk of responders thought that Lerner had not actually testified because she gave no statements about the facts of what happened. If that view is right, Lerner successfully invoked her Fifth Amendment rights and cannot be called again. But this was not a unanimous view, it was not based on the full transcript, and there are no cases that seem to be directly on point. So it’s at least a somewhat open question.

Her missing e-mails and her conduct in targeting Obama's conservative opponents are another thing, and I hope Congress doesn't plan to just throw in the towel on the investigation of the IRS and Ms. Lerner's misconduct simply because she's not being held in contempt.

It's reported today that as he left office, the U.S. attorney for the District of Columbia decided not to indict Lois Lerner for refusing to testify before Congress after first expressing her innocence.

The question was always a close one, and I cannot say that Manchin's decision was incorrect.  Orin Kerr discussed this point at the time:

I don’t think the answer is clear, as there are no cases quite like it. The general rule is that a witness can’t testify about her version of the facts and then invoke the Fifth Amendment when facing cross examination. Here’s what the Court said in Mitchell v. United States, 526 U.S. 314, 321(1999)

It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. See Rogers v. United States, 340 U.S. 367, 373 (1951). The privilege is waived for the matters to which the witness testifies, and the scope of the “waiver is determined by the scope of relevant cross-examination,” Brown v. United States, 356 U.S. 148, 154—155 (1958). “The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry,” id., at 155. Nice questions will arise, of course, about the extent of the initial testimony and whether the ensuing questions are comprehended within its scope, but for now it suffices to note the general rule.

The tricky part is how to characterize Lerner’s testimony before she invoked the Fifth Amendment. On one hand, if you say that Lerner merely expressed her view that she is innocent but did not actually testify as to any facts, then you could say she did not waive her rights with her statement. Questioning would not be about the details of facts she already testified to, but rather would require her testimony on a subject she declined to testify about. On the other hand, if you say that Lerner’s reciting the allegations and then denying them effectively testified about the allegations, then you could say that she did testify and did waive her rights. From that perspective, she already testified about “the subject” by saying that she did not violate any IRS rules or submit false testimony, and further questioning would be about the details of why she thinks that. 

I’m not enough of a Fifth Amendment nerd to have strong views on which side is right. So I posed the question earlier today (based on press reports of what Lerner said, not the full transcript) to a listserv of criminal procedure professors that includes some serious Fifth Amendment experts. Opinions were somewhat mixed, but I think it’s fair to say that the bulk of responders thought that Lerner had not actually testified because she gave no statements about the facts of what happened. If that view is right, Lerner successfully invoked her Fifth Amendment rights and cannot be called again. But this was not a unanimous view, it was not based on the full transcript, and there are no cases that seem to be directly on point. So it’s at least a somewhat open question.

Her missing e-mails and her conduct in targeting Obama's conservative opponents are another thing, and I hope Congress doesn't plan to just throw in the towel on the investigation of the IRS and Ms. Lerner's misconduct simply because she's not being held in contempt.