Washington, D.C. -Today, Rep. Elijah E. Cummings, Ranking Member of the House Committee on Oversight and Government Reform, released a memo from the nonpartisan Congressional Research Service (CRS) responding to a request to identify the last time Congress successfully convicted an American citizen of contempt after that person asserted his or her Fifth Amendment right not to testify before Congress.
On Thursday, the Committee is scheduled to vote on a resolution proposed by Committee Chairman Darrell Issa to hold former Internal Revenue Service official Lois Lerner in contempt despite the fact that she asserted her Fifth Amendment right not to testify before the Committee.
In its report, CRS had to go back to the 1950s and 1960s to identify a series of 11 cases in which the Senate Committee on Government Operations led by Senator Joe McCarthy, as well as the House Un-American Activities Committee and other committees, attempted to hold individuals in contempt even after they asserted their Fifth Amendment rights. In all of the cases that involved in-person testimony, CRS reported that juries refused to convict these individuals or Federal courts overturned their convictions.
One case highlighted by CRS, United States v. Hoag, identifies striking similarities between McCarthy’s actions in 1954 and Issa’s actions today. McCarthy chaired the Permanent Subcommittee on Investigations of the Senate Committee on Government Operations. During a hearing on August 6, 1954, he repeatedly questioned a woman named Diantha Hoag despite the fact that she had asserted her Fifth Amendment rights. She was a coil winder at the Westinghouse Company in Cheektowaga who made $1.71 an hour.
Although the hearing was originally held in executive session, a transcript of McCarthy’s questioning of the witness was made public, and it bears a remarkable resemblance to Issa’s questioning of Lerner:
Both witnesses made statements professing their innocence and then declined to answer subsequent questions.
Ms. Hoag: “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 a saboteur."
Ms. Lerner: “I have not done anything wrong. I have not broken any laws. I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee."
Both chairmen claimed the witness waived her Fifth Amendment rights.
Senator McCarthy: “For your benefit, you have waived any right as far as espionage is concerned by your volunteering the information you have never engaged in espionage … My position is, just for counsel’s benefit, when the witness says she never engaged in espionage, then she waived the fifth amendment, not merely as to that question, but the entire field of espionage. Giving out information about Government work would be in that field."
Rep. Issa: “You have made an opening statement in which you made assertions of your innocence, assertions you did nothing wrong, assertions you broke no laws or rules. Additionally, you authenticated earlier answers to the IG. At this point I believe you have not asserted your rights, but, in fact, have effectively waived your rights."
The Federal District Court rejected McCarthy’s claims, found no Fifth Amendment waiver, and acquitted the witness of all charges.
“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."
In a statement issued with the release of these new documents, Cummings said:
“Sixty years ago, Joe McCarthy tried-and failed-to hold an American citizen in contempt after she professed her innocence and asserted her rights under the Fifth Amendment. I reject Chairman Issa’s attempts to re-create our Committee in Joe McCarthy’s image, and I object to his effort to drag us back to that shameful era in which Congress tried to strip away the Constitutional rights of American citizens under the bright lights of hearings that had nothing to do with responsible oversight and everything to do with the most dishonorable kind of partisan politics."
