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Taking the Fifth Amendment Can Be Unsettling | Wolfensberger

Back in the late 1940s and ’50s, as scores of witnesses were “taking the Fifth” in public hearings before the House Un-American Activities Committee, Speaker Sam Rayburn and friends were privately “striking a blow for liberty” by taking their fifth (bourbon and branch) in the speaker’s Capitol hideaway — the infamous “Board of Education” room.

I draw this parallel not just for the pun of it, but because the anti-subversive committee’s active pursuit of domestic communists and the majority leadership’s passive acquiescence in it is emblematic of the “textbook Congress” — a period when committees acted semi- autonomously and party leaders tacked between majority rule and party responsibility. That’s because the House was then informally controlled by a conservative coalition of Southern Democrats and Republicans, and muscular anti-communism was one of the sinews binding their alliance.

For decades HUAC was at the center of highly publicized hearings that sometimes ruined lives and reputations. Sen. Joe McCarthy, R-Wis., ran a parallel communist witch hunt from the Senate between 1950 and his censure by the Senate in 1954. It wasn’t until McCarthy’s downfall and a turn in public opinion that the courts and Congress began addressing these excesses. According to Deschler’s Precedents, “the most extensive litigation [during this period] has involved the fifth amendment.”

In 1955 the House adopted 10 rules changes known as the Code of Fair Procedures aimed at protecting the rights of witnesses and persons accused during investigative hearings. At the top of the list was a requirement that a quorum for an investigative hearing not be less than two members. Rules Chairman Howard Smith, D-Va., explained that the change “abolishes the custom of one-man subcommittees.”

Other protections included the right to be accompanied by counsel, providing copies of committee rules to witnesses in advance, permitting witnesses to ask to testify in executive session and requiring committee approval to publicly release any executive session testimony.

All that history came to mind with the recent assertion by IRS official Lois Lerner of her Fifth Amendment right not to testify before the House Oversight and Government Reform Committee. The committee subsequently determined by party-line vote that Lerner had waived the right in her opening statement by denying any wrongdoing. Presumably the committee’s next moves, if she still refuses to testify, are to find her in contempt and/or negotiate immunity from prosecution in return for her testimony.

What is most puzzling to this non-lawyer was the committee’s refusal to first hear arguments, precedents and case law for and against the claim Lerner had waived her Fifth Amendment rights. The committee minority, by inserting in the record letters from Lerner’s lawyer, a former House general counsel and a Columbia law professor, provided case law documentation she had not waived the right. The majority, on the other hand, provided no such legal underpinning on grounds it would not change any votes. Although the chairman indicated he was acting on advice from the House’s parliamentarian and general counsel, he did not elaborate and reportedly shared only the House counsel’s memo with the ranking Democrat, in confidence.

After exchanges with majority and minority committee staff and reading the judicial opinions they cite, I have concluded that the committee majority relied primarily on decisions involving defendants in criminal and civil trials who effectively waive their Fifth Amendment rights by voluntarily taking the witness stand.

Witnesses, by contrast, compelled by subpoena to testify involuntarily, have sometimes answered general questions or made brief statements professing their innocence before taking the Fifth. The Supreme Court has held that such utterances do not constitute a waiver so long as incriminating facts have not been broached: “Waiver of constitutional rights  . . .  is not lightly to be inferred.”

The committee majority’s rush to judgment before weighing arguments on both sides is an unsettling omen. If the inquiry devolves into a “just get the witness” quest and away from a “just get the facts” focus, it will be its own undoing. When a circus ringmaster directs you to the sideshows, you know the center ring will either remain empty or might as well be.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

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