lets be clear piezoe ...you / we do not know whether a public servant has the right to take the 5th in a non criminal hearing in front of congress..
http://www.guardian.co.uk/law/us-news-blog/2013/may/22/lois-lerner-irs-fifth-amendment-congress
Legal scholars have debated, hotly, whether the fifth amendment even provides the protection Lerner and so many others have claimed. Akhil Reed Amar, Sterling professor of law at Yale University, has long argued against sweeping fifth-amendment protections in cases of congressional testimony. Amar has pointed out that while witnesses have a right to justice, society has a right to the truth. Writing about Lay's successful use of the fifth in 2002, to avoid disclosing details of how Enron cooked its books, Amar asked: "By what right do Enron bigwigs stonewall Congress?"
The Fifth Amendment prohibits a person from being compelled to be a witness against himself in any 'criminal case', but a Congressional hearing is hardly a criminal case ⦠sometimes a truth-seeking society needs to be able to compel a person to speak outside his trial â in grand jury rooms, civil cases and legislative hearings, for example.
Amar proposes a "a narrow type of testimonial immunity" for congressional witnesses. The difficulty of threading that needle was illustrated at the Lerner hearing by an argument among oversight committee members as to whether she had forfeited her fifth-amendment protections by delivering a statement. As Lerner rose to leave, Representative Trey Gowdy (R-South Carolina), objected.
"She waived her right to testify by issuing an opening statement," said Gowdy, a former federal prosecutor. (He apparently meant that Lerner had waived her right not to testify.) "She ought to stay and answer questions."
Ranking member Elijah Cummings, (D-Maryland), also a lawyer, intervened.
"Unfortunately this is not a federal court and she does have a right," Cummings said. "And we have to adhere to that." Committee chair Darrell Issa excused Lerner, with the provision that she could be called back if it had been found that she had indeed, as Gowdy claimed, waived her fifth-amendment right.
Issa's staff will have to sort through a truly daunting overhang of case law if they are to answer that question. The argument wends through a bramble patch of supreme court precedent and heavy-hitting entries in the Journal of the American Bar Association.
A Harvard law school dean, Erwin Griswold, mounted the seminal defense of the practice in a 1954 essay titled The Fifth Amendment: An Old and Good Friend. Revolted by the personal destructiveness of the McCarthy era, Griswold drew a comparison between criminal courts and congressional hearings:
In our criminal courts, we would never think of requiring an accused person to answer questions. He doesn't have to take the stand at all, and if he does do so, he has the protection of an impartial judge, and the right to have his counsel speak in court on his behalf. Why should it be so different in a legislative inquiry, when the information that is sought relates to the witness' own conduct? ⦠The more I think about this, the more it seems to me to be an unsound practice.
To those on the political right outraged today at Lerner's refusal to testify, there may be some consolation in the knowledge that the politics cuts both ways. In 2007 Monica Goodling, an underling in President George W Bush's justice department, took the fifth to avoid telling Congress about the Bush administration's sudden dismissal a year earlier of six US attorneys. A justice department investigation later concluded that the firings were inappropriately political; one of the dismissed attorneys seemed to have been fired for not aggressively prosecuting supposed voter fraud by Democrats. Goodling was implicated because she was one of the few to have been clumsy enough to explicitly describe the administration's plan in writing. She took the fifth, was never charged with a crime, and today she works in PR.
