Lois Lerner Should Be Free to Plead the Fifth — One Question at a Time

May 23, 2013 • Commentary
This article appeared in Forbes​.com on May 23, 2013.

Many people were shocked to see Congressman Darrell Issa, Chairman of the House Oversight and Government Reform Committee, excuse IRS official Lois Lerner after she made a statement asserting her innocence, then pleaded the Fifth Amendment — refusing to answer questions that might incriminate her. He let the witness go just like that.

Some members of the committee believed that by making a statement with a number of claims, Lerner waived her right to plead the Fifth.

There’s a hidden assumption here: if she still has the right to plead the Fifth, she could avoid all questions with a single pleading and be done with the hearing.

Well, pleading the Fifth Amendment is an inalienable right not to incriminate oneself, an important constitutional protection whose roots go back to 17th century England where, as many other places, the prevailing practice in criminal justice proceedings had been to extract forced confessions from defendants. Back then, the principal defendants were religious dissenters.

But this doesn’t mean a witness can avoid all questions with a single pleading.

A witness must plead the Fifth one question at a time.

Members of a congressional committee may ask a witness as many questions as they wish, and a witness may answer some, all or none — but the witness must respond to the questions individually.

This is how major congressional hearings have been conducted in the past.

Witnesses who plead the Fifth many times might defer or avoid legal perils, but they’re likely to undermine their credibility.

Perhaps the most spectacular congressional hearings, in terms of Fifth Amendment pleadings, involved Senate investigations about links between organized crime and compulsory unionism. In January 1957, the Democratic Senate established the United States Select Committee on Improper Activities in Labor and Management. The Chairman was Democratic Senator John L. McClellan, and this became known as the McClellan Committee. Democrat Robert F. Kennedy served as assistant counsel and a principal strategist. The committee operated for three years, until it was dissolved in March 1960.

Altogether, there were a reported 253 active investigations, some 8,000 subpoenas for witnesses and documents, and 1,526 witnesses appeared before the committee. The proceedings involved 270 days of hearings and an estimated 150,000 pages of transcripts.

Of particular interest were the 343 witnesses who refused to answer questions, citing their Fifth Amendment right not to incriminate themselves.

For example, Frank Rosenthal, who managed Las Vegas casinos for the Chicago Mob, pleaded the Fifth Amendment 37 times.

Mafioso and labor union racketeer Johnny Dio reportedly figured in the blinding of newspaper columnist Victor Reisel — sulfuric acid was thrown in his face on a New York City street. During a two‐​hour appearance before the McClellan Committee, Dio pleaded the Fifth Amendment 140 times.

In 1957, when Dave Beck was the Teamster Union boss, he was summoned before the McClellan Committee and pleaded the Fifth Amendment 117 times. The New York Times reported that “the hearings cost Mr. Beck his teamster leadership and his entree to Presidents and prime ministers.”

One of Beck’s associates, Norman Gessert, pleaded the Fifth Amendment 71 times.

After Beck was convicted on bribery charges, tax evasion and other offenses, he resigned as Teamsters president, and Jimmy Hoffa took over the union.

He, too, had a corrupt and violent past — and he was indicted for offering an $18,000 bribe to a staff member of the McClellan Committee, in an effort to find out what it had on him. In Tennessee, where a special grand jury was investigating whether Hoffa had engaged in jury tampering, he pleaded the Fifth Amendment 54 times.

In 1975, Salvatore Briguglio, a suspect in the mysterious disappearance of Hoffa, pleaded the Fifth Amendment when questioned by a federal grand jury. “I don’t really feel like getting into what I’m doing here,” he was quoted as saying. “What is this, a quiz show?”

About the Author