To call or not to call: compelling witnesses to appear before Congress.

Author:Zeidman, Daniel Curbelo

Introduction I. The Tension Between the Individual Fifth Amendment Right Against Self-Incrimination and Congress's Investigative Authority II. Three Approaches to Balancing the Witness's Privilege Against Self-Incrimination with Other Compelling Interests in Different Legal Contexts A. Excusing the Witness from Appearing 1. Prosecution Calling a Witness Who Will Take the Fifth 2. Defense Calling or Questioning a Witness Who Will Take or Already Has Asserted the Fifth Amendment Privilege. B. Compelling the Witness to Appear and Invoke the Fifth Amendment Privilege. C. Compelling the Witness to Appear Unless the Sole Purpose for Requiring the Witness to Appear is to Pillory or Humiliate. III. How to Balance the Right Against Self-Incrimination with Congress's Legislative Power: Do Not Compel Witness Testimony. A. Ethical Reasons Not to Compel Public Assertion of Fifth Amendment Right B. Constitutional Reasons That Congress Should Not Be Able to Compel Public Assertion of Fifth Amendment Rights. C. Legislative Policy Reasons Not to Compel Public Assertion of Fifth Amendment Rights D. Alternatives to Gather Relevant Information When a Witness Claims Fifth Amendment Rights During a Congressional Hearing Conclusion INTRODUCTION

On May 22, 2013, Lois Lerner, director of the IRS tax-exempt organizations division, appeared before the House of Representatives Committee on Oversight and Government Reform (Oversight Committee). (1) Lerner was called to testify about the IRS's alleged targeting of conservative groups seeking 501(c)(4) tax-exempt status. (2) Oversight Committee Chairman Representative Darrell Issa (3) issued a subpoena compelling Lerner to come before the Committee, despite being informed through her counsel that she would assert her Fifth Amendment right against self-incrimination. (4) In a letter dated May 20, 2013 to Chairman Issa, Lerner's attorney explained that she would invoke her Fifth Amendment right because the Department of Justice was simultaneously conducting a criminal investigation on the alleged targeting of conservative groups by the IRS. (5) The letter requested that Lerner be excused from the hearing and asserted that she "has not committed any crimes or made any misrepresentation but under the circumstances she has no choice but to take this course." (6)

Notwithstanding the request to be excused from the hearing, Chairman Issa compelled Lerner to appear before the Oversight Committee "because of, among other reasons, the possibility that she will waive or choose not to assert the privilege." (7) On the day of the televised hearing, before invoking her Fifth Amendment right, Lerner read aloud a brief opening statement that proclaimed in general terms her innocence of any wrongdoing. (8) In response, Chairman Issa and Oversight Committee Republicans argued that by offering an opening statement Lerner had waived her Fifth Amendment privilege and should be subject to questioning by the Oversight Committee/1 An exchange between Congressman Trey Gowdy (10) and Oversight Committee Ranking Member Elijah Cummings (11) summarized the dispute:

Mr. Gowdy: Mr. Issa, Mr. Cummings just said we should run this like a courtroom, and I agree with him. She just testified. She just waived her Fifth Amendment right to privilege. You don't get to tell your side of the story and then not be subjected to cross examination. That's not the way it works. She waived her right of Fifth Amendment privilege by issuing an opening statement. She ought to stay in here and answer our questions....

Mr. Cummings: Mr. Chairman, ... first of all, with all respect for my good friend Mr. Gowdy, I said I would like to see it run like a federal court. Unfortunately, this is not a federal court, and she does have a right, and I think ... we have to adhere to that. (12)

Still, Lerner refused to answer any questions, and eventually Chairman Issa recessed the hearing and allowed Lerner to leave. (13)

On June 28, 2013, just over a month after the initial hearing, the Oversight Committee voted that "Lerner's self-selected, and entirely voluntary, opening statement constituted a waiver of her Fifth Amendment privilege against self-incrimination because a witness may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details." (14) Additionally, in response to Lerner's testimony, Congressman Mo Brooks (15) introduced legislation on June 20, 2013 to "terminate any Federal employee who refuses to answer questions or gives false testimony in a congressional hearing." (16)

Despite voting that Lerner had waived her right to remain silent and passing a resolution and introducing legislation that would automatically terminate any federal employee who declined to answer questions at a congressional hearing, the Oversight Committee was not yet done with Lerner. On March 5, 2014, Chairman Issa compelled Lerner to reappear before the Oversight Committee (17) despite again being informed by counsel that Lerner would not answer questions pursuant to her Fifth Amendment right. (18) At the hearing, Lerner once more declined to answer questions from the Committee. (19) This time, in response to Lerner's decision to invoke her constitutional right, the Oversight Committee voted to hold her in criminal contempt of Congress. (20)

Roughly one month later, the House of Representatives held Lerner in contempt by a vote of 231 to 187. (21) The Resolution holding Lerner in contempt, House Resolution 574, directed the Speaker of the House of Representatives to certify the Oversight Committee's report regarding Lerner's refusal to testify before the Committee to the U.S. Attorney for the District of Columbia. (22) It also directed the U.S. Attorney to "take all appropriate action to enforce the subpoena." (23) If Lerner is found guilty under the current criminal contempt statute, she faces a fine of up to $100,000 and imprisonment for up to one year. (24)

Tension between the individual right against self-incrimination and Congress's investigative role is not new. When political scandals arise, legislators are quick to conduct public and high-profile investigations and to subpoena the actors involved to testify and explain their actions. (25) For example, the Fifth Amendment played a prominent role during the McCarthy era when Congress investigated alleged communist infiltration in American society (26) and during the Iran-Contra affair investigation that shook the Reagan presidency. (27) In both instances, Congress engaged in high-profile, public investigations and was confronted with witnesses who asserted their Fifth Amendment rights and declined to answer questions. Yet, despite the persistent conflict between individual rights and Congress's investigative powers, there is no definitive standard to guide or control situations where members of Congress wish to compel a witness to appear before a congressional committee when counsel informs them that the witness will invoke his or her Fifth Amendment right to remain silent.

Given the recurring ethical and constitutional issues involved, the District of Columbia Bar (D.C. Bar) has offered one approach to address this divisive subject in the form of an advisory ethics opinion. (28) D.C. Legal Ethics Opinion 358 (Opinion 358) provides that "a violation [of the rules of ethics] occurs only where the summons [of a witness who intends to assert his or her Fifth Amendment right] serves no substantial purpose 'other than to embarrass, delay, or burden' the witness." (29) In other words, according to the D.C. Bar's advisory analysis, a lawyer may call a witness to appear even if he or she knows the witness will refuse to answer questions, so long as the lawyer's intent is not solely to pillory the witness. (30)

In light of the ever-growing partisanship in Washington (31) and the increasing politicization of congressional investigations, (32) the tension between individual Fifth Amendment rights and Congress's investigative mandate is likely to recur with prominence and increased acrimony in the future. Without a clear standard to determine when to compel individuals to appear in person and assert their constitutional rights, lawmakers will be left making ad hoc decisions. This result raises significant ethical, constitutional, and legislative policy concerns.

This Note provides a detailed analysis of whether members of Congress should be able to compel a witness to appear before a committee when the individual has stated that he or she will invoke the right against self-incrimination. (33) Part I of this Note discusses the Fifth Amendment privilege against self-incrimination, Congress's broad investigative authority, and the tension that arises between the two. Part II analyzes three possible approaches to address situations when individuals inform congressional committees beforehand that they will invoke their right against self-incrimination: (1) excuse the witness from appearing before the committee, (2) compel the witness to appear before the committee and invoke the Fifth Amendment privilege live and in-person, and (3) compel the witness to appear before the committee unless the sole purpose of calling the witness is to shame or pillory him or her. Finally, Part III explains why members of Congress should excuse a witness who has formally expressed through counsel that he or she will assert a valid privilege against self-incrimination. Such an approach would establish a proper, ethical balance between Congress's investigative power and the individual constitutional right against self-incrimination.


    Congress has conducted investigations since America's inception, even though the Constitution contains no explicit language granting Congress such power. The first congressional investigation began in 1792, just...

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