# Making a statement, then invoking the Fifth Amendment (IRS): legal? **URL:** \ **Category:** Factual Questions\ **Created:** [May 23, 2013, 2:25pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122 "2013-05-23T14:25:18Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Leo\_Bloom](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/leo_bloom/32/10377_2.png) [@Leo\_Bloom](https://boards.straightdope.com/u/Leo_Bloom)\ **Post date:** [May 23, 2013, 2:25pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/1 "2013-05-23T14:25:18Z")
Yesterday Lois Lerner, head of the IRS division overseeing exemptions, appeared before the House Oversight and Government Reform committee. She read a statement and then invoked the Fifth Amendment. The statement is here: [spoiler]Members of this committee have accused me of providing false information when I responded to questions about the IRS processing of applications for tax exemption. I have not done anything wrong, I have not broken any laws, I have not violated any IRS rules and regulations, and I have not provided false information to this or any other congressional committee. And while I would very much like to answer the committee’s questions today, I’ve been advised by my counsel to assert my constitutional right not to testify or answer questions related to the subject matter of this hearing. After very careful consideration, I have decided to follow my counsel’s advice and not testify or answer any of the questions today. Because I’m asserting my right not to testify, I know that some people will assume that I have done something wrong. I have not. One of the basic functions of the Fifth Amendment is to protect innocent individuals, and that is the protection I am invoking today. [/spoiler] 1. To me, at least, this seems like having your cake and eating it too. Under oath, she can present evidence and make assertions to influence a jury/legally authorized questioners, and then avoid cross-examination. 2. A Congressional hearing, I’m guessing, follows different rules than a court trial. Would this affect the matter? ---
**Author:** ![Senegoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senegoid/32/6606_2.png) [@Senegoid](https://boards.straightdope.com/u/Senegoid)\ **Post date:** [May 23, 2013, 2:33pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/2 "2013-05-23T14:33:14Z")
Well, the last I read of this case (yesterday, Wednesday afternoon), Darryl Issa was of the opinion that she has waived her 5th Amendment right to stay silent, and he suggested that he will call her again. No doubt you already read this, which is why you are asking. We shall see, as the play unfolds. Shakespeare couldn’t have written better drama. ---
**Author:** ![Leo\_Bloom](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/leo_bloom/32/10377_2.png) [@Leo\_Bloom](https://boards.straightdope.com/u/Leo_Bloom)\ **Post date:** [May 23, 2013, 2:37pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/3 "2013-05-23T14:37:18Z")
Oh, yes, but I know there are many smart law (and Government) people here, and I’m interested in their knowledge and opinion, among others. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 23, 2013, 3:09pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/4 "2013-05-23T15:09:37Z")
I’m not really sure what the rules are when responding to a Congressional invitation or to a Congressional subpoena. If this had been a criminal trial, and she made that statement on direct examination, she would have waived her Fifth Amendment privilege and could have been forced to answer questions about whether she broke any laws, violated any IRS rules and regulations, or provided false information to any congressional committees. If she refused to do so, a likely remedy would be that the prosecution would be permitted to argue that her failure to answer means she’s hiding guilt. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [May 23, 2013, 3:17pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/5 "2013-05-23T15:17:43Z")
> [@Leo\_Bloom](#): > > 1. A Congressional hearing, I’m guessing, follows different rules than a court trial. Would this affect the matter? …Gowdy’s outraged objection was met with applause in the courtroom. But James Duane, a Fifth Amendment expert at Regent University, says Gowdy’s claim was “extremely imaginative” but “mistaken.” Had this been an actual criminal trial, in an actual courtroom, and had Lerner been an actual defendant, then yes, it would not have been permissible for her to testify in her own defense and then refuse cross-examination on Fifth Amendment grounds. But a congressional hearing is not a criminal trial in two important ways, Duane tells Daily Intelligencer… > **[No, Lois Lerner Did Not Waive Her Fifth Amendment Rights By Making An Opening...](https://outsidethebeltway.com/no-lois-lerner-did-not-waive-her-fifth-amendment-rights-by-making-an-opening-statement/)** > > As you can see in this brief clip from the opening of today's House Government Oversight Committee hearing, IRS employee Lois Lerner's decision to assert her Fifth Amendment rights rather than answer questions didn't come without some degree of... ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 23, 2013, 3:20pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/6 "2013-05-23T15:20:16Z")
I’ve read one legal expert (James Duane, a law professor at Regent University) who says Lerner is within her rights. A Congressional hearing has different rules than a court trial because you are compelled to appear at a Congressional hearing but a defendant can refuse to take the stand at a trial. So when you are mandatorily required to make an appearance you’re allowed to use selective invocation of your Fifth Amendment rights. ninja’d by lawbuff (and citing the same professor) ---
**Author:** ![Keeve](https://avatars.discourse-cdn.com/v4/letter/k/f07891/32.png) [@Keeve](https://boards.straightdope.com/u/Keeve)\ **Post date:** [May 23, 2013, 3:23pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/7 "2013-05-23T15:23:13Z")
> [@Bricker](#): > > If this had been a criminal trial, and she made that statement on direct examination, she would have waived her Fifth Amendment privilege and … But what if it was a criminal trial, and someone made such a statement outside of the courtroom? In other words, what sort of act implicitly waives protection? It is only upon testimony, or would any sort of statement to investigators waive it, or would even a vague and nebulous public announcement cause one to [del]lose[/del] have waived their 5th Amendment rights? ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [May 23, 2013, 3:29pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/8 "2013-05-23T15:29:55Z")
> [@Keeve](#): > > But what if it was a criminal trial, and someone made such a statement outside of the courtroom? In other words, what sort of act implicitly waives protection? It is only upon testimony, or would any sort of statement to investigators waive it, or would even a vague and nebulous public announcement cause one to [del]lose[/del] have waived their 5th Amendment rights? Miranda voluntary answers can be revoked at any time, this is actually the same as asserting the 5th, in the field, it is permitted. ---
**Author:** ![smiling\_bandit](https://avatars.discourse-cdn.com/v4/letter/s/e9a140/32.png) [@smiling\_bandit](https://boards.straightdope.com/u/smiling_bandit)\ **Post date:** [May 23, 2013, 3:41pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/9 "2013-05-23T15:41:01Z")
Alan Derschowitz says she made a serious mistake, and that she did effectively waive her 5th Amendment rights. As a practical matter, regardless of any legal issue, it looks really bad and makes her appear extremely guilty. ---
**Author:** ![Leo\_Bloom](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/leo_bloom/32/10377_2.png) [@Leo\_Bloom](https://boards.straightdope.com/u/Leo_Bloom)\ **Post date:** [May 23, 2013, 4:26pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/10 "2013-05-23T16:26:26Z")
OP here. Two things, at this point: 1. On taking the Fifth and any suggestion/implication of guilt. Not really concerned with that in this thread in a big way, only (only!) insofar as it is involved in cases or thinking about… 2. OP in detail: How making statement-then taking Fifth in straight-up court proceedings/cases. How making statement-then taking Fifth in Congressional hearings, as it differs from above. 2a) The difference between testimony in “invited” appearances before Congress, and “subpoenaed” ones. I understand Lerner testified after having been “invited,” and Congressman Issa is considering serving her a subpoena. (I never even knew such a distinction existed.) ---
**Author:** ![Cayuga](https://avatars.discourse-cdn.com/v4/letter/c/3e96dc/32.png) [@Cayuga](https://boards.straightdope.com/u/Cayuga)\ **Post date:** [May 23, 2013, 5:03pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/11 "2013-05-23T17:03:25Z")
I seem to remember that Oliver North read a statement before invoking the Fifth on every question he was asked. Am I remembering wrong? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 23, 2013, 5:04pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/12 "2013-05-23T17:04:37Z")
I can only speak to the criminal trial angle. The idea is that the Fifth Amendment is not both a sword and a shield. Any time a witness testifies as to any fact, basic due process requires that the opposing side be permitted to cross-examine the witness and get “the rest of the story.” When a witness testifies that she’s violated no laws, that opens the door for the opposing side to explore her claim via cross-examination. She cannot use the Fifth Amendment to shield herself from those questions. > [@](#): > > Where an accused party waives his constitutional privilege of silence, takes the stand in his own behalf and makes his own statement, it is clear that the prosecution has a right to cross-examine him upon such statement with the same latitude as would be exercised in the case of an ordinary witness, as to the circumstances connecting him with the alleged crime. While no inference of guilt can be drawn from his refusal to avail himself of the privilege of testifying, he has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts. _Fitzpatrick v. US_, 178 US 304 (1900). See also _Brown v. US_, 356 U.S. 148 at 154-56 (1958). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 23, 2013, 5:26pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/13 "2013-05-23T17:26:37Z")
Some very brief moments of research have led me to tentatively conclude that there was no waiver of Fifth Amendment rights in this circumstance. When Congress requests testimony, it does so for the purpose of advising itself on factual matters that may inform legislative actions. While it’s every citizen’s duty to cooperate with such fact-finding, citizens do not lose their constitutional protections on the Capitol steps. If Congress wishes to compel testimony that may criminally implicate a witness, they may do so by granting the witness “use immunity,” as provided in 18 U.S.C. § 6002. Use immunity guarantees that the witness’ testimony (or the fruits thereof) cannot be used against him in a future prosecution. Failing that, Congress has no legal way to demand incriminating testimony, regardless of how much self-serving testimony may have preceded it. I think. ---
**Author:** ![Senegoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senegoid/32/6606_2.png) [@Senegoid](https://boards.straightdope.com/u/Senegoid)\ **Post date:** [May 23, 2013, 7:31pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/14 "2013-05-23T19:31:02Z")
Let me expand upon the original question by bringing this up: Can _anything_ that a citizen voluntarily tells a LEO (outside of court, and not under oath) be interpreted to waive any further 5th rights? I am thinking of a case that was in the news a few years ago (as best I recall it, from public news reports): U. S. citizen visits Canada, then returns (driving a vehicle). Border guard stops him routinely. Guard asks citizen if laptop computer is his; citizen says it is. Guard inspects citizen’s laptop: Sees file icons on desktop with filenames blatantly suggesting they are kiddie porn images. Guard attempts to view images, finds them encrypted. Citizen refuses to give passwords to open them. Laptop is confiscated. Citizen charged with [something]. Citizen claims 5th Amendment gives him the right to refuse to give password. Government claims he waived that right by answering border guard’s question “Is this computer yours?” Apparently their stance is, if you begin to answer questions that a LEO asks, you waive 5th Amendment rights. Sorry, I never saw a follow-up as to how it turned out. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 23, 2013, 7:51pm UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/15 "2013-05-23T19:51:35Z")
> [@Senegoid](#): > > Laptop is confiscated. Citizen charged with [something]. Citizen claims 5th Amendment gives him the right to refuse to give password. Government claims he waived that right by answering border guard’s question “Is this computer yours?” Apparently their stance is, if you begin to answer questions that a LEO asks, you waive 5th Amendment rights. Understandable confusion. But the key question in that case was: is the request for the password similar to a subpoena for documents, or similar to incriminating testimony? The Fifth Amendment protects you against being forced to incriminate yourself via testimony. But it doesn’t protect you from being required to turn over incriminating papers in response to a subpoena. So when the government demanded the password, they claimed their demand was akin to a subpoena. The accused, understandably, said they were asking him to incriminate himself. But he was wrong. The password, itself, isn’t incriminating: there’s no law against having a password. The password is only incriminating if the government can argue, “Look at this – he knew the password to the laptop, and there’s all sorts of kiddie porn on the laptop.” Because the government could already prove he knew about the kiddie porn, the fact that he knew the password was not self-incrimination. Make sense? ---
**Author:** ![Senegoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senegoid/32/6606_2.png) [@Senegoid](https://boards.straightdope.com/u/Senegoid)\ **Post date:** [May 24, 2013, 12:04am UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/16 "2013-05-24T00:04:42Z")
> [@Bricker](#): > > But the key question in that case was: is the request for the password similar to a subpoena for documents, or similar to incriminating testimony? > > The Fifth Amendment protects you against being forced to incriminate yourself via testimony. But it doesn’t protect you from being required to turn over incriminating papers in response to a subpoena. > > \ > > Make sense? Makes sense, and that’s what I thought it might be. (Similar to demands that a suspect provide hair clippings for DNA samples.) But that isn’t how the Gov’t stated their case – according to the news, it was as I described. The suggestion here is that the Gov’t made the _wrong argument_ as to why the password wasn’t immunized. Or, equally possibly, the story could have been garbled in the re-telling by the news media. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 24, 2013, 1:02am UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/17 "2013-05-24T01:02:17Z")
The government is free to take the position you describe, but that doesn’t mean it will hold up in court. In some circumstances, it’s possible that the password itself is testimonial (“ILikeDiddlingBabies”), but it’s probably just bad reporting. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 24, 2013, 1:15am UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/18 "2013-05-24T01:15:21Z")
> [@Bricker](#): > > But he was wrong. The password, itself, isn’t incriminating: there’s no law against having a password. The password is only incriminating if the government can argue, “Look at this – he knew the password to the laptop, and there’s all sorts of kiddie porn on the laptop.” That seems strange. Suppose forensics have shown that the clerk in a convenience store was murdered by a robber at noon. I’m a suspect and I’m asked if I was in that store at noon on that date. I refuse to answer on the grounds that my answer would incriminate me. Using the logic that a password by itself isn’t incriminating, I could be told I can’t refuse to answer the question because there’s no law against being in a store at a certain time. ---
**Author:** ![usedtobe](https://avatars.discourse-cdn.com/v4/letter/u/ec9cab/32.png) [@usedtobe](https://boards.straightdope.com/u/usedtobe)\ **Post date:** [May 24, 2013, 1:23am UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/19 "2013-05-24T01:23:40Z")
How about this scenario: “What’s the password” Driver quickly brings up “change password”, enters gibberish. Password is now whatever string his fingers hit (remember that password fields are obscured; he really could scramble some characters without remembering which - I have done this when turning over a confidential ID. “I don’t know” - a true statement at this point. Has he destroyed evidence? Has he violated any law? ---
**Author:** ![Leo\_Bloom](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/leo_bloom/32/10377_2.png) [@Leo\_Bloom](https://boards.straightdope.com/u/Leo_Bloom)\ **Post date:** [May 24, 2013, 2:06am UTC](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122/20 "2013-05-24T02:06:21Z")
Fuck. Hijacked in three. Plus for a topic with a zillion previous threads. [Next page](https://boards.straightdope.com/t/making-a-statement-then-invoking-the-fifth-amendment-irs-legal/659122.md?page=2)