Lerner case shows legal complications when federal workers are required to testify

Tuesday - 7/9/2013, 3:49pm EDT

John Mahoney partner and chair, Tully Rinckey's Labor and Employment Law practice

Download mp3

By Cogan Schneier
Special to Federal News Radio

Lois Lerner, the IRS official at the center of the tax agency's controversy over targeting conservative organizations, still may be required to give testimony before Congress despite pleading the Fifth at a hearing in May.

John Mahoney, chairman of the Labor and Employment Practice group at Tully Rinckey, told the Federal Drive with Tom Temin and Emily Kopp Monday, that the legality of Lerner's actions at the May hearing is complicated and the consequences, if she is called to the stand again, could be serious.

At that hearing, Lerner read a short statement before the House Oversight and Government Reform Committee and then invoked the right to remain silent. The committee ruled June 28 in a 22-17 vote that by reading an opening statement, Lerner gave up her Fifth Amendment right to remain silent.

"I really think she skirted the line really close to waiving her rights," Mahoney said.

The committee's resolution stated that a witness may not testify voluntarily and then invoke his or her privilege against self-incrimination afterward when cross-examined.

Mahoney said Lerner's first mistake was denying that she had broken any laws.

"The problem is she can't have it both ways. She can't remain silent and also deny wrongdoing. So I think she'll be hauled back up the Hill to be required to answer questions by the committee," Mahoney said.

Mahoney said Lerner might be compelled, or required, to testify. If the committee does that, she would not be subject to criminal prosecution if she answers Congress' questions. But she could receive sanctions up to termination from federal service.

When Congress requires witnesses to testify, they are granted "use immunity" under the Fifth Amendment, Mahoney said. But Congress could require Lerner to testify and not guarantee that she will not be prosecuted for any misconduct described in her statements.

"This fight is not over yet, but it is a very important area that all federal employees really need to keep in mind in terms of what their rights and responsibilities are when they are under investigation, either as the subject or target of the investigation, or even as a witness," he said.

Mahoney said if a witness is compelled or required to give testimony, he or she must answer all investigator questions regarding the witness' conduct. If a witness refuses to answer questions in that situation, he or she may be held in contempt of Congress, which can be considered a criminal offense. If a witness lies on the stand about conduct, he or she may be prosecuted as well.

Mahoney said with his clients, he looks at these issues very broadly. He said that if there is any chance that a client's statement could be incriminating, he advises them to remain silent. Clients have a right to do so when giving voluntary testimony.

"The government has to be very careful, when giving use immunity, that they consider the criminal implications for the conduct that they're investigating," Mahoney said. "So it's important on both parties part that you walk very carefully into this minefield in terms of whether this is a criminal investigation or whether this is purely an administrative investigation, and if you make one false move one way or the other it could have major implications."

The IRS placed Lerner on administrative leave after the hearing. Mahoney said he expects she has been or will be subpoenaed in the upcoming months.

Cogan Schneier is an intern for Federal News Radio.

RELATED STORIES:

House panel pressing IRS figure to talk

Broke no laws IRS official says then takes 5th

IRS replaces official in tea party controversy