It is always problematic for a government official to refuse to testify. It is certainly her right as an individual to refuse to do so. However, it is also a refusal to comply with a constitutionally mandated process of oversight by Congress.
Of course, Colonel Oliver North took the fifth before Congress during the Iran Contra investigation and was later embraced as an iconic hero by conservatives and Fox News as a television host.
From a legal standard, there is always an advantage to making such a claim. It can force a grant of immunity that can insulate your client from potential criminal charges. Moreover, any appearance has only downsides for the client. Lerner has become the lightning rod in the scandal and members are out for blood . . . her blood. Even if her decisions were not crimes, she could be charged with any statements that are viewed as false or misleading. In this case, Lerner is facing questions of allegedly incomplete or misleading information given to the Committee on at least four occasions last year. That would be a stronger basis for a criminal charge than the original decisions targeting conservative groups.
The House oversight committee has indicated that Lerner was is under subpoena and would be required to appear in the morning. It is clear that the photo op of an Obama official invoking the fifth amendment is too good to pass up.
While Lerner has every right (and perhaps reason) to invoke the Fifth, it does not prevent her being removed from her duties since such testimony is part of government service, particularly for a high-ranking official. It is clearly a difficult issue since a person is not supposed to be punished for the use of a constitutional right. Yet, this is refusing to carry out important government function. She is being called to an oversight committee to address allegations of government wrongdoing. On that basis alone, should she be removed from her current office in your view?
Source: NY Times