Regarding Lois Lerner's proclamation of innocence and the Fifth Amendment

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The defendant stands indicted in an eight-count indictment for violations of 2 U.S.C.A. § 192, which makes it an offense, under certain circumstances, for a person to refuse to testify before a committee of either house of Congress. More specifically, the indictment charges that the Senate Permanent Subcommittee on Investigations, of the Committee on Government Operations of the Senate, was conducting hearings, and that defendant appeared as a witness before this subcommittee and was asked questions which were pertinent to the question under inquiry, which she unlawfully refused to answer. Each of the eight counts relates to a separate question. Trial by jury has been waived.

It appears undisputed that defendant appeared before a quorum of this subcommittee pursuant to subpoena, and was duly sworn and interrogated. The transcript of these proceedings consists of eight printed pages. She answered some questions, but refused to answer approximately 29, specifically invoking the Fifth Amendment to the Constitution. Among these 29 questions which she refused to answer on this ground are the eight made the basis for the indictment. Her claim of privilege in each case was clear and unequivocal, and she was directed to answer in equally clear and unequivocal language. I find that the questions propounded which were included in the indictment were pertinent to the question then under inquiry, and that this question was within the purview of the authority of the subcommittee, and had a legislative purpose.

The point for determination, and on this hinges defendant's guilt or innocence, is whether she was required, under the law, to answer the questions after having refused so to do in reliance on 669*669 the Fifth Amendment. The Government concedes that, standing alone, this reliance would offer a complete defense, but claims that she waived her rights under the Fifth Amendment by virtue of an answer she gave to a previous question. That question was as follows:

"If the Communist Party ordered you to sabotage the work you are doing, assuming that we were at war with Communist Russia, would you obey those orders or would you refuse to obey them?"

On that question defendant said she would make a statement. The Chairman agreed that she might, and then she answered as follows:

"I have never engaged in espionage nor sabotage. I am not so engaged. I will not so engage in the future. I am not a spy nor saboteur * * *"

The issue, therefore, is whether, by giving that answer, she waived her rights, under the Fifth Amendment, to the questions subsequently propounded. These, generally speaking, had to do with whether she had given information about her work to members of the Communist Party, whether she had discussed at a Communist Party meeting classified Government work, whether she received any clearance before 1947 to work on classified work, whether she did some espionage for the Communist Party seven and one-half years before, the character of work she was doing before 1947, and the city where she worked before her present job.

It is the Government's contention that these questions come within the area of her answer above quoted, and having given that general answer, she waived her right to refuse to answer the specific questions thereafter propounded on the ground that they might incriminate her. It is defendant's contention that her answer, which the Government claims is a waiver, was not incriminating and therefore did not foreclose her from claiming her privilege under the Fifth Amendment to the specific questions involved; in other words, that it did not constitute a waiver.

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The rule of law, therefore, as announced by these cases, is that the voluntary answer must be "criminating" to prevent the witness from stopping short and refusing further explanation. The defendant in this case did not testify as to any criminating fact; on the contrary her testimony relied on by the Government as requiring her to answer the questions herein involved were completely non-incriminating in character and, under the authorities above mentioned, she had the right to "stop short" and assert her privilege.

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From this statement, the Government argues that, if the position of a defendant when he testifies is no different from that of an ordinary witness, the position of an ordinary witness is no different from that of a defendant. But this generalization overlooks the fact that, when a defendant takes the witness stand and testifies, "His waiver is not partial", and "having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing." Raffel v. United States, supra [271 U.S. 494, 46 S.Ct. 568]. see also Johnson v. United States, 318 U.S. 189, 195, 63 S.Ct. 549, 87 L.Ed. 704. In the case of an ordinary witness, however, he does not waive his immunity unless he fails to invoke it when an answer might tend to incriminate him, or unless he has given incriminating testimony, in which case he waives it so far as further details in respect thereof are concerned. Also, it should not be overlooked that the status of a defendant who testifies in his own behalf is different from that of an ordinary witness, e. g., one before a grand jury or a congressional committee. The former is not required to testify, but may make his choice of testifying or not, with the right to have the jury instructed that his failure to testify creates no presumption against him. The ordinary non-defendant witness is required to appear and answer questions unless he properly claims that his answers may tend to incriminate him.

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Having in mind the admonition in the recent case of Emspak v. United States, 1955, 349 U.S. 190, 196, 75 S.Ct. 687, 691, 99 L.Ed. 997, quoting from Smith v. United States, 337 U.S. 137, 150, 69 S.Ct. 1000, 93 L.Ed. 1264, that "`Waiver of constitutional rights * * * is not lightly to be inferred'", and in the light of the controlling decisions of the Supreme Court and the Court of Appeals for this circuit, above referred to, I reach the conclusion that the defendant did not waive her privilege under the Fifth Amendment and therefore did not violate the statute in question in refusing to answer the questions propounded to her. Therefore, I find that she is entitled to a judgment of acquittal on all counts, and judgment will be entered accordingly.

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