Fifth Amendment and Immunity in Congressional Hearings

Fifth Amendment and Immunity in Congressional Hearings

Since the Darrell Issa witch hunt is back in the news regarding Lois Lerner's invocation of her Fifth Amendment [enhanced version available to subscribers] privilege, I thought I would remind readers of the following blog entry earlier when this nonsense flared up. Invoking the Fifth - the House Oversight Inquisition (Federal Tax Crimes Blog 5/25/13), here.

I now add two excerpts from law review articles -- the first discussing assertion of the Fifth Amendment in a congressional hearing and the second discussing the congressional committee's ability to avoid the Fifth Amendment by getting immunity for the witness. (Note that the latter is the way that Committee can get Lerner's testimony that Issa and his crew claims is so essential to the investigation; so one obvious question is why the Committee does not obtain immunity for her; could one answer be that they know the testimony she will give is not as damaging as they can claim if she does not give the testimony; in other words, is she more useful to the conspiracy theorists by claiming the Fifth when the truth to which she would testify is not helpful to their cause?)

Kalah Auchincloss, Congressional Investigations and the Role of Privilege, 43 Am. Crim. L. Rev. 165, 193-195 (2006) (footnotes omitted) [enhanced version available to subscribers].

B. Fifth Amendment in a Congressional Investigation

1. Watkins v. United States: The 5th Amendment Lives

As noted several times previously, individual rights did not appear to pose a limit on congressional investigatory power until after the era of abuse by HUAC. Despite the importance of the Fifth Amendment, it is interesting to observe that even this explicitly constitutional privilege was not openly recognized by the Court as available to a witness before Congress until the 1950s.

In Watkins v. United States [354 U.S. 178 (U.S. 1957), here], the Supreme Court granted certiorari to review the conviction of a witness for contempt for declining to answer questions posed to him by HUAC. Watkins had cited the Fifth Amendment right to remain silent as justification for his refusal to testify. The Court [enhanced version available to subscribers] overturned Watkins' conviction, finding that the Bill of Rights applies to congressional hearings just as it does to courts:

View Jack Townsend's opinion in its entirety on the Federal Tax Crimes blog site.

For additional insight, explore Tax Crimes, authored by Jack Townsend and available at the LexisNexis® Store


Discover the features and benefits of the LexisNexis® Tax Center

For quality Tax & Accounting research resources, visit the LexisNexis® Store

For more information about LexisNexis products and solutions connect with us through our corporate site