Greg Roseman, a Deputy Director at the Internal Revenue Service, didn’t make any friends on the Hill last month when he refused to testify at a House Oversight Committee hearing. It was the second time in recent memory that an IRS employee had invoked a Fifth Amendment right not to testify: Roseman follows hot on the heels of Lois Lerner’s invocation of the Fifth Amendment a month earlier in the wake of the IRS tax-exempt scandal.
Roseman, like Lerner, is still employed by the IRS. It’s important to note, however, that Roseman’s testimony was solicited as part of an ongoing investigation about his relationship with a contractor who won big-dollar federal contracts. The testimony was not related to the tax-exempt scandal – though the timing is close enough that it has cast a dark shadow over the already beleaguered agency.
It’s also angered members of Congress. In response, Rep. Mo Brooks (R-AL) has proposed legislation that would require federal workers to be fired if they don’t answer questions from Congress. The rule, which has earned the moniker, the “Lerner Rule” as a nod to Lerner, was introduced on June 20, 2013, and has 13 co-sponsors; the most recent, Rep. Kevin Cramer (R-ND) signed on just yesterday.
The bill, H.R. 2458, has been referred to the House Committee on Oversight and Government Reform. The text of the bill is pretty short and to the point. It says:
SECTION 1. CAUSE FOR TERMINATION WHEN GRANTED IMMUNITY.
Any Federal employee who refuses to answer questions in a congressional hearing after being granted immunity shall be terminated from employment.
SEC. 2. CAUSE FOR TERMINATION WITHOUT WAIVER OF IMMUNITY.
Any Federal employee who, in a congressional hearing, refuses to answer questions specifically, directly, and narrowly relating to the official duties of such employee, without being required to waive immunity with respect to the use of answers or the fruits thereof in a criminal prosecution of such employee, shall be terminated from employment.
SEC. 3. FALSE TESTIMONY CAUSE FOR TERMINATION.
If three-fourths of the congressional body to whom the testimony was given finds that a Federal employee willfully or knowingly gave false testimony in a congressional hearing, then such employee shall be terminated from employment.
So there you go. A fitting end to the scandal, right?
Not so fast.
No matter how angry you are about how Lerner and Roseman have acted in their official capacities as federal employees, it should give you pause that members of Congress would propose a rule that purports to strip away constitutional rights. It shouldn’t matter who that these folks are employed by the federal government. Working for the federal government shouldn’t result in a different set of rules: one for them and one for the rest of us.
Why is it okay to suggest that constitutional protections shouldn’t apply simply because of your employer? Why stop with federal employees? Why not say that lawyers shouldn’t get to plead the Fifth? Or plumbers? Or journalists? Or the New York Mets?
Currently, it’s well settled in the law that those who appear before Congress may invoke the Fifth amendment. Unlike a criminal trial where defendants can opt to take the stand, those appearing before a Congressional committee as the result of a subpoena, don’t have the choice to sit back in the courtroom: they have to take the stand. However, that doesn’t mean that their Constitutional rights fly out of the window: they are allowed to choose not to answer questions which might result in self-incrimination.
This rule could change that. And that should scare you a little.
The process is important. Law is important. The Constitution is important. It’s the very highest law of our land. Replacing or superseding bits of it because we’ve decided that we don’t like the end result in a few circumstances isn’t how the law works. And granting the power to Congress to make decisions about your Constitutional rights isn’t how the law works.
Nobody is making excuses for Lerner or Roseman here. But that could just as easily be you. Or someone you know. When it comes to the Constitution, bad actors shouldn’t equal bad law.