Feds and the Fifth Amendment

News that Rep. Mo Brooks (R-Ala.) introduced a bill that would mandate the firing of federal workers who invoked their Fifth Amendment rights in Congressional hearings sparked a lot of spirited discussion. A few commentators suggested that the bill might do some good. One wrote, "If you are not willing to disclose information about your conduct in your official capacity you should be fired." Another wrote, "The Fifth Amendment--which protects against self-incrimination -- applies to all Americans. That includes federal employees."

Adam Mazmanian responds: The bill was proposed amid anger on the Republican side in the House Oversight and Government Reform committee against Lois Lerner, the Internal Revenue Service's director of tax-exempt organizations. She's a key figure in the ongoing scandal about the alleged targeting of Tea Party groups seeking tax-exempt status for special scrutiny.

Brooks's bill was nicknamed the "Lerner rule" when it was first floated. Since then Republicans on the committee passed a resolution determining that Lerner did not waive her Fifth Amendment rights, due to the content of a statement she made before refusing to answer questions. Since then, another IRS official took the Fifth in a separate hearing of the same committee looking into potential conflict of interest in the award of several IT contracts.

Despite the growing anger of Republicans on the committee, it's unlikely that Brooks' bill will become law, even if it advances through the House. First of all, there would be limited Democratic support for such a measure. For example, the ranking member on the committee, Rep. Elijah Cummings (D-Md.) expressed disappointment that the witness in the IT case was refusing to testify, but offered his strong support for the right to avoid self-incrimination. But even absent that, there would be serious constitutional questions raised by a measure that explicitly impinged on a guaranteed right.