Lawyers Examine Pleading the Fifth As A Federal Employee

In a week that brought surprising wrinkles in the controversy over the Internal Revenue Service’s alleged targeting of Tea Party groups, lawyers consulted by Government Executive weighed in on how federal employees at large might view the threat of a contempt of Congress citation against a former tax official involved in the investigation.

To recap: Lois Lerner, the director of the IRS Exempt Organizations Division who left government in September 2013, last Wednesday again invoked her Fifth Amendment rights to remain silent before an abbreviated hearing of the House Oversight and Government Reform Committee. That prompted a shouting match between panel Chairman Darrell Issa, R-Calif., and Ranking Member Elijah Cummings, D-Md., after Issa cut off Cummings’ microphone (Issa later personally apologized). House Speaker John Boehner, R-Ohio, then suggested that Lerner might be subject to contempt of Congress, while Issa remained noncommittal about his next steps toward compelling her testimony, possibly in exchange for a grant of immunity.

On Thursday, Democrats on the House floor offered a privileged resolution to condemn Issa’s behavior in the IRS probe, which Republicans tabled by a vote of 211 to 186. Also, news broke that Lerner’s attorney, William Taylor, said Lerner already had given a full interview to Justice Department investigators months ago about her role in the alleged targeting; Justice declined to confirm that. According to a press leak in January that angered Republicans, Justice is not planning criminal charges in the IRS matter.

Finally, on Friday, House Ways and Means Chairman Dave Camp, R-Mich., announced he had reached an agreement with the IRS to receive long-sought additional e-mails involving Lerner that Republicans hope will shed light on why a Cincinnati-based unit of the Exempt Organizations Division beginning in 2010 singled out for extended scrutiny certain nonprofit groups seeking tax-exempt status as social welfare groups based on their names and political rhetoric.

While no one can tell how long Lerner will maintain her stance -- a silence that has frustrated congressional investigators and many federal employees -- attorneys who specialize in such cases see important lessons for future handling of testimony from agency officials.

Lerner is “not likely to testify in our lifetime,” said longtime Washington attorney Stanley Brand, a former general counsel to the U.S. House under Speaker Thomas P. O’Neill, D-Mass., whom Cummings recently consulted. “There’s a lot of hoopla in the press about contempt, but it’s not self-executing—it has to be litigated,” he said, ticking off the steps from committee to the full House vote, to the naming of a U.S. attorney who presents the case to a grand jury, which, if charges are filed, would be followed by a criminal trial in U.S. district court with a jury, motions, and an appeal. “There would be all kinds of issues about whether Lerner waived her rights” when she took the Fifth and when she left government, Brand said. “That’s going to take years. Nor do I think federal employees ought to worry about the prospect of contempt,” he added, noting that the House vote to hold Attorney General Eric Holder in contempt in June 2012 “is still in a black hole. If the Republican narrative is correct that the White House and upper people in the Treasury Department have been directing all this, the normal course would be to give her immunity in a New York minute,” Brand said. “I think the Republicans are playing games. They should have granted her immunity months go.”

Joshua Levy, a former congressional staffer who is now an attorney with Cunningham Levy LLP, agreed that, as in the Holder contempt case, the process could take years. “Historically a contempt citation can yield testimony in documents and compliance with a subpoena, but it’s not clear it will in this case. If the House is going to hold Ms. Lerner in contempt, it likely would file a declaratory judgment action in federal court,” he said, noting that when a House panel first voted to hold Harriet Miers, former White House counsel to President George W. Bush, contempt in 2007, she didn’t testify until 2009.  “Even if they hold Lerner in contempt and the House sues,” Levy added, “the court may find she did not waive her rights, and so is not compelled to testify. The court will determine whether the subpoena is valid.”

John Mahoney, a partner in Tully Rinckey PLLC who specializes in labor and employment law, said, “The committee likely has a good sense of whether any criminal activity occurred at the IRS. If a crime likely occurred and Ms. Lerner has any potential criminal exposure, then she has every right to exercise her Fifth Amendment rights to remain silent, unless she is granted what is called ‘use immunity’ from such prosecution by Justice based on her testimony. The House needs to be careful about infringing on those rights by threatening to hold her in contempt for exercising her Fifth Amendment rights,” he added. “If she has no criminal exposure, then the committee through DoJ should grant her use immunity, so the committee can compel her testimony and get at the truth. If there is no offer of use immunity, then this all amounts to political theater, as a witness cannot be compelled by a congressional committee to self-incriminate under threat of being held in contempt of Congress.”

The chief lesson for federal employees involved in investigations, by the FBI or inspectors general or others, Mahoney added, is that “it is crucial to know the nature of the charges he or she could face, as such insights can guide him or her in a decision to cooperate with the investigation, not cooperate at the risk of being removed, or invoke the Fifth Amendment.”

Debra Roth, a partner at the federal employment law firm of Shaw, Bransford and Roth, stressed that “every person has the right to plead the Fifth, but for federal employees, there might be job consequences. If you take the position and need to plead Fifth Amendment rights, you are saying some statement might incriminate you, so therefore some agencies conclude that it is in their interest to temporarily remove you, reassign you or put you on administrative leave.” Since Lerner went on administrative leave and then left government, Roth notes, this no longer applies.  “A lot of people are speculating that the reason Lerner took the Fifth is not because of what she did in performance of her duties, but because of what she previously testified,” she added, citing the Monica Lewinsky case that led to the impeachment of President Clinton in 1998 -- the fear is “being prosecuted for the lie, not what you did,” she said.

Such things were rarely prosecuted in the past, but “there’s been a sea change in how the Justice Department considers lying in an investigation,” taking it much more seriously, said Roth.

Roth hears union people and other federal employees complain that in today’s polarized Washington, in the “war” between the two branches of government, federal employees have been “excellent pawns.” While lawmakers enjoy “the power of subpoena and absolute immunity to say things that are absurd and knowingly untrue, and while the executive branch has the power of a press office, federal employees can’t fight fire with fire,” Roth said. Sometimes, “the only tool in your arsenal is to plead the Fifth to protect your own personal interest.”