Things I Did Not Know About Compelled Testimony

Ken White at Popehat offers some useful insight to non-lawyers among us about compelled testimony (in the context of the Louis Lerner/IRS saga)

Some people have argued that Lois Lerner should be compelled to testify, either by court order or by grant of immunity. Lerner and her lawyers would love that, as it would make prosecuting her for any suspected wrongdoing incredibly difficult.

Compelled testimony is radioactive. If a witness is compelled to testify, in any subsequent proceeding against them the government has a heavy burden to prove that no part of the prosecution is derived from the compelled testimony, which is treated as immunized. This is called theKastigar doctrine:

"Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence." 378 U.S. at 378 U. S. 79 n. 18. This burden of proof, which we reaffirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.

If I read this right, if the House were to compel her to testify, they might as well grant her immunity and be done with it.

Further on in the post, Ken points out an issue that I have been wondering about myself -- Those who want Lerner to testify are concerned with government arbitrary abuse of power for political purposes.  Given that, how can these same folks have any doubt as to why Lerner might plead the Fifth in front of a hostile and partisan House committee

I've been seeing a lot of comments to the effect of "why should Lois Lerner take the Fifth if she has nothing to hide?" Ironically these comments often come from people who profess to oppose expansive government power, and from people who accept the proposition that Lerner was part of wrongdoing in the first place — in other words, that there was a government conspiracy to target people with the machinery of the IRS for holding unpopular political views. Such people do not seem to grasp how their predicate assumptions answer their own question.

You take the Fifth because the government can't be trusted. You take the Fifth because what the truth is, and what the government thinks the truth is, are two very different things. You take the Fifth because even if you didn't do anything wrong your statements can be used as building blocks indishonest, or malicious, or politically motivated prosecutions against you. You take the Fifth because if you answer questions truthfully the government may still decide you are lying and prosecute you for lying.

Pardon me: if you accept the proposition that the government targets organizations for IRS scrutiny because of their political views, and you still say things like "why take the Fifth if you have nothing to hide", then you're either an idiot or a dishonest partisan hack.

If you want to get bent out of shape about something, you are welcome to wonder why Lerner is being investigated, apparently, by the hyper-partisan civil rights division of Justice rather than the public integrity section.  That, combined with President Obama's pre-judging of the DOJ's conclusions, is more of a red flag than Lerner's taking the Fifth.

Remember, Martha Stewart did not go to jail for securities fraud of any sort.  She went to jail for statements she made during the government investigation.


  1. Curtis:

    We allege that she used her office to specifically target conservative groups. The evidence is plainly there in front of us that her office did just that. There's no hurry to prosecute since the truth will be clear as somebody investigates her for her crimes. It speaks volumes though that the DoJ won't and half the people believe it is OK to use the IRS to target people who the regime does not favor.

  2. Elam Bend:

    I'm not sure why anyone would submit to congressional testimony if they can reasonably expect it to be hostile.

  3. Broccoli:

    The issue is that she did testify and then pleaded the fifth to avoid what was in essence cross-examination. I don't think they can compel her to testify, but they can hold her in contempt for violating the rules around using the Fifth.
    So the issue is around did she violate the established precedents in using the fifth to an extent that a comtempt charge is justified. In essence she is potentially in contempt of court not for pleading the fifth, but for offering testimony (in her favor) and also trying to plead the fifth. You can't present exculpatory evidence or statements and then refuse cross examination. She should have not said anything and plead the fifth, and there would be no issue.

  4. Not that stupid:

    Follow the money. Lerner is protecting her pension.

  5. dmon:

    Um... you people do understand the difference between the government compelling a private citizen to testify concerning private activity and the government compelling a government official to testify concerning actions taken as an agent of the government, right?

  6. treeher:

    See dmon's comment above

  7. treeher:

    Are you after Lerner, or after those above her? She's obviously not gonna talk, so in the short term she is being used for political purposes - broadcast the spectacle of her pleading the 5th. After a time, give her immunity if you think you can get the goods on any higher ups.

  8. mlhouse:

    The problem is that the Republicans have been burned going down the immunity path before. See Webster Hubbell etc al.
    What is amazing is that a member of the Obama Administration can go in front of Congress, refuse to testify by pleading the 5th Amendment, and HALF the country can convince themselves that there isn't a scandal.

  9. mesaeconoguy:

    The problem is Lois Lerner just gave testimony to DOJ, after taking the Fifth in front of Congress.

    The DC Circuit does not recognize the waiver of the Fifth Amendment privilege at one proceeding not carrying over to another proceeding, which is the configuration everywhere else.

    That means because Lerner waived her Fifth Amendment privilege with DOJ, she may be held in contempt, with court enforcement.

    More here:

  10. herdgadfly:

    If the testimony and documents collected thus far provide proof that the IRS acted illegally by discriminating against conservative non-profit organizations, what possible use is there to parading Lerner and her lawyer before a House subcommittee that does not have the power to convict.

    The only power that the House has is the power to impeach government officials, so lets get on with it. Start with the SecTreas and work on down to Lois Lerner and her ilk. Then the Republican House can have at Justice for gun-running and murder.

  11. wreckinball:

    What complicates the argument is that she already has admitted to the use of IRS for targeting conservative groups. The whole thing started out with that admission (at a press conference) which led to her eventual convenient "early retirement".

    Thus she has already admitted to in appropriate use of the IRS. It should no longer be a partisan issue to inquire what else and who else was involved.

  12. xtmar:

    If you read through the article and the comments a bit more, you will see that this is addressed. If she is compelled to testify, it doesn't matter if she is a government employee or not. Indeed, it is specifically pointed out that chips are compelled to testify in internal affairs investigations, with the cynical motive that it helps inoculate them against prosecution.

    What is more promising, I think, is arguing that she waived her fifth amendment rights by testifying to some extent already, though that's apparently something of a legal gray area.

  13. Nehemiah:

    Not even a Smidgeon of a scandal

  14. Nehemiah:

    John Boehner is AWOL on this. A special joint congressional committee would have subpoena power. Why can't we get a Special Prosecutor appointed?