Issa: Lerner waived her rights by giving an opening statement, so we’re bringing her back before the committee

posted at 4:41 pm on May 22, 2013 by Allahpundit

You already know the background on this from Ed’s post this morning. Lerner began her testimony by reading a self-serving statement, then declared that she’d answer no questions. Trey Gowdy objected, insisting that once you start yapping in your own interest, you’re not allowed to clam up again.

Issa evidently agrees — but only for the moment, I suspect. Prediction: Either he’ll reverse himself on this or he’ll bring her back simply to have her sit there and plead the Fifth repeatedly in response to the committee’s questions. He won’t hold her in contempt.

House Oversight and Government Reform Committee Chairman Darrell Issa said embattled IRS official Lois Lerner waived her Fifth Amendment rights and will be hauled back to appear before his panel again…

“The precedents are clear that this is not something you can turn on and turn off,” he told POLITICO. “She made testimony after she was sworn in, asserted her innocence in a number of areas, even answered questions asserting that a document was true … So she gave partial testimony and then tried to revoke that.”…

“I understand from her counsel that there was a plan to assert her Fifth Amendment rights,” he continued. “She went ahead and made a statement, so counsel let her effectively under the precedent, waive — so we now have someone who no longer has that ability.”

Are the precedents clear? It’s true that you can’t take the stand as a criminal defendant to give your side of the story and then go quiet during cross-examination, but what about at a congressional hearing where you’re merely a witness? One expert on the Fifth Amendment tells New York mag that the privilege can always be invoked circumstantially in situations like this:

First, unlike in a trial, where she could choose to take the stand or not, Lerner had no choice but to appear before the committee. Second, in a trial there would be a justifiable concern about compromising a judge or jury by providing them with “selective, partial presentation of the facts.” But Congress is merely pursuing information as part of an investigation, not making a definitive ruling on Lerner’s guilt or innocence.

“When somebody is in this situation,” says Duane, a Harvard Law graduate whose 2008 lecture on invoking the Fifth Amendment with police has been viewed on YouTube nearly 2.5 million times, “when they are involuntarily summoned before grand jury or before legislative body, it is well settled that they have a right to make a ‘selective invocation,’ as it’s called, with respect to questions that they think might raise a meaningful risk of incriminating themselves.”

In fact, Duane says, “even if Ms. Lerner had given answers to a few questions — five, ten, twenty questions — before she decided, ‘That’s where I draw the line, I’m not answering any more questions,’ she would be able to do that as well.” Such uses of selective invocation “happen all the time.”

What happens when Issa brings her back and the questions begin? Could be that she’ll cave and start answering, but I assume her lawyer will tell her to take the Fifth again, in which case it’s Issa’s move. He could try to hold her in contempt, which would probably ignite a court battle and would certainly ignite lots of media concern-trolling about the GOP crushing Lerner’s rights as a way to change the subject from the underlying scandal. The court battle would slow down the investigation and might spark a bit of public sympathy for Lerner and the IRS — although judging by the applause after Gowdy’s remarks in the clip below (via the Washington Free Beacon), maybe not. Politically, it might even be worth losing the court battle: Litigation will only call more attention to the fact that Lerner doesn’t want to talk for mysterious reasons, which makes the IRS’s actions look that much shadier. Still, there are other fish to fry here that make it not worth getting bogged down — yet — in a privilege fight over Lerner. There’s still Cindy Thomas and her underlings to hear from, for starters. If they point the finger at Lerner, then it’s to court we go. But in the meantime, sure, why not bring her back and make her sit through an hour or so of serially re-asserting her privilege to dozens of questions? Worst-case scenario, the dodginess of the spectacle puts even more pressure on the IRS. Best-case scenario, she’ll decide to answer questions selectively, which will add a bit more information to what the committee knows.

BuzzFeed has a new post up this afternoon that acts as a nice counterpoint to Mark Hemingway’s piece on Lerner yesterday. She was very, very hard on the Christian Coalition while at the FEC, but conspicuously not so hard on one of Al Gore’s biggest fundraisers. Go figure. Exit question: Is our government now so weak vis-a-vis union power that not a single person at the IRS, including Lerner, has been fired or even disciplined for what happened? (Steve Miller ended up resigning, but of course he had only a few weeks left to his term.) Has anyone at any level been fired for any of the scandals now roiling political media? The only person I can think of is Raymond Maxwell, who wasn’t fired but placed on “administrative leave” over Benghazi and who argues forcefully that he’s being scapegoated for something he had nothing to do with. But don’t give up hope: Obama’s biggest fans in liberal media, who were at the White House just yesterday, are chirping this afternoon about how it’s time for Lerner to go. Maybe O’s messaging team is using its surrogates to prepare the way for a big firing.


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“…if there’s no chance of me incriminating myself.”

You SEEM to be assuming that her delaration that she is honest, honorable, that she did nothing wrong or illegal is actually TRUE!

I equate it to a lawyer making a statement in court that he knows he is not suppoed to make but does so anyway just to get the IDEA / POINT he wanted to make ‘out there’, to get people/the jury to hear it — once you say it you can’t UN-say it – then apologize for saying it & have it ‘stricked from the record’. She wanted to get the IDEA out that she did nothing wrong/Illegal then plead the 5th so no one could challenge that statement.

The fact is she was in charge. The fact is this was WIDESPREAD, not just limited to Cinncinnatti. The fact is, according to Miller & the I.G., there were NO LESS THAN 2 investigations of her department that generated official reports (that were delayed/hidden) … the White House was notified of this (but evidently not Obama)…AND SHE NEVER KNEW ANYTHING – NONE OF THIS – WAS GOING ON IN HER DEPARTMENT? BS!I am sorry – you can’t realistically hod 3 investigations of HER department without her finding out!

The Committee showed Miller a video of Shulman perpetrating Perjury. Shulman made 118 trips to the WH but says he NEVER said a word about any of this that was going on under his watch? THAT is BS! If it is NOT then his actions are STILL CRIMINAL because he purposefully misled/deceived Congress & the WH and deserves go to jail! Miller did the same thing, telling Congress he felt no obligation to tell them & thought THEY WOULD FIND OUT ABOUT IT – LIKE OBAMA SUPPOSEDLY DID – IN THE NEWS! HE deserves jail time too for the same reason!

easyt65 on May 23, 2013 at 11:17 AM

While this circus is going on, the Gang of Eight Amnesty bill advances surreptitiously
flawedskull on May 23, 2013 at 10:29 AM

You are not wrong in your instincts that both parties are taking advantage of the three scandals to move the immigration bill forward.

Lerner set up her ABA speech so she could ‘leak’ the IRS info. And believe me some of the righteous indignation about being stalled last year is cover up for the fact the RINOs were glad to see the Tea Party suppressed, last year.

Lerner also staged the ‘slip’ yesterday where she blew her fifth amendment. Not saying DEMs and RINOs are working together, but many are using circumstances to play their games

However, the Senate was going to pass amnesty regardless. Meanwhile, the Senators are getting cocky because they think they have the cover of the scandals. When Hatch decided it was now safe to join the gang, that was a gift to anyone who might have trusted Hatch at his word.

A towering but genteel figure, Hatch was seen as the potential Republican domino — the first GOP senator beyond the four in the bipartisan group that crafted the immigration bill to join the effort. A yes from Hatch, the bill’s supporters hoped, would heighten the odds of support from the GOP as the bill moved to the full Senate.

Facebook Chief Executive Mark Zuckerberg and Hatch have an ongoing dialogue on these issues, one of the senator’s aides said. A Facebook representative declined to discuss their private talks.

Billionaire lib Zuckerberg funds FWD.us which fronts the bogus group that channeled bucks to Graham, and pays for the Rubio/Ryan ads.

Senators are falling like dominos, but only on cue. The scandals were very useful.

Hey, zuckerberg not only fund raised for Christie, his PAC ‘hearts’ Mitch Mcconnell

Among the marquee names: GOP Senate Minority Leader Mitch McConnell (Ky.; $5,000) and his Democratic counterpart, Senate Majority Leader Harry Reid (Nev.; $2.500), Sens. Dianne Feinstein (D-Calif.) and Chuck Schumer (D-N.Y.). The PAC has contributed to more than 15 California lawmakers, including Feinstein.

no a tea party favorite, he

entagor on May 23, 2013 at 11:24 AM

We are now learning when the Senior Staff learned about this IRS ‘scandal bomb’ about to go off, having delayed it already until after the election, they did not inform the President. They did not act in the best interest of the nation or the American people who had been victimized. They held a ‘Strategy & PR’ meeting about how to SPIN the story in order to mitigate the damage to this administration/President!

Like this whole administration since 2008, it’s all about Obama & his agenda. Americans are just pawns.slaves/serfs.

easyt65 on May 23, 2013 at 11:24 AM

Americans are just pawns.slaves/serfs.

easyt65 on May 23, 2013 at 11:24 AM

Reminds me of a friend, a mature lady who supported her husband, but was dumped for a younger woman. In court, her lawyer did a half ax job. She had to pay off husband on her clerk salary. Judge rises. Her lawyer walks across aisle to husband’s lawyer, slaps his back and says “Where’s lunch, buddy?”

I agree about being pawns. Both sides are gaming. The Libs are down to naked gangsterism. The RINOs slip you a mickey.

In this chess game, a pawn who understand he has been pawned is not powerless.

entagor on May 23, 2013 at 11:34 AM

Lawyers deal in what we call “authority”, which means court opinions which represent precedent, and statutes/regulations. These are the basis of law, not opinions.

kaltes on May 22, 2013 at 11:41 PM

However, the final basis of law is law.

The only thing separating precedent from opinion is the consent of the governed.

Which this admin is dangerously close to losing.

Difficultas_Est_Imperium on May 23, 2013 at 11:51 AM

This is the IRS people… the IRS! Nobody likes the IRS… She’ll get no sympathy (except the New York Times).

spec_ops_mateo on May 23, 2013 at 12:05 PM

A witness doesn’t have the right to invoke the 5th in order to avoid testifying about an issue in which there is no chance of self-incrimination.

Then are you saying there is no chance she would incriminate herself….

OR

are you saying since SHE says there is no chance of her incriminating herself then she should not have the right (or there is no need for her) to plead the 5th?

I definitely agree with the idea that if she truly believes she did nothing wrong then there is no need to plead the 5th….UNLESS SHE WANTS TO PROTECT SOMEONE ELSE & / OR PREVENT HERSELF FROM BECOMING / BEING SEEN AS A ‘SNITCH’, fearing innerdepartment/administration punishment if seen as such.

easyt65 on May 23, 2013 at 12:11 PM

…fearing innerdepartment/administration punishment if seen as such.

…we have already seen how a ‘trouble-maker’ – the #2 Diplomat in Benghazi – was demoted/mistreated by the administration/Hillary’s State Department when he questioned the administration’s BS story…

easyt65 on May 23, 2013 at 12:12 PM

You don’t know me. You misjudge me.

Your comments cheerleaders aside, I don’t see you denying that what I said was true.

You also, obviously, have not bothered to read back upthread to my earlier exchanges with another attorney. I requested courteously that you do so before giving me the benefit of you wisdom. Might have saved us both some time.

Im not going to dig through hundreds of comments. If you have a particular comment you wanted me to read, you could link/quote it.

Rogers stood for the proposition that once a witness had testified regarding a certain subject, the witness could not thereafter raise the privilege and refuse to answer any questions. But Rogers is not the last word, and I presumed you would simply follow the trail forward.

Actually no, you are wrong, Rogers did not stand for that, you are twisting it. Rogers simply stands for the fact that the 5th doesn’t protect you from questioning about the details of already-incriminating statements voluntarily made.

See Brown v. United States, 356 U.S. 148 (1958) holding in part, “By taking the stand and testifying in her own behalf, petitioner waived the right to invoke on cross-examination her privilege against self-incrimination regarding matters made relevant by her direct examination.”

Are you serious? Every lawyer already knows that, and Ive even said it before in my previous posts. That is in the context of a criminal trial, which congressional testimony isn’t. This woman didn’t have a choice to simply not take the stand, she was subpoenad. As I said before, that makes testifying before congress like a police interrogation, not a criminal trial. There is no knowing/voluntary waiver made by appearing before Congress.

I recommend further study.

novaculus on May 23, 2013 at 4:05 AM

Given your extremely poor legal analysis, it is clear to me that you are just an opinionated layperson. I don’t need to know you to know that, I can tell just from the content of your posts.

kaltes on May 23, 2013 at 12:46 PM

I disagree with RWM and Alan Dershowitz on this.

blink on May 23, 2013 at 12:30 PM

.
No offense, but I’ll go with Alan Dershowitz until you can provide a verfied resume of equal or better qualifications.

PolAgnostic on May 23, 2013 at 12:50 PM

Maybe O’s messaging team is using its surrogates to prepare the way for a big firing.

And the wheels on the bus go bump-bump-bump…..

GWB on May 23, 2013 at 2:50 PM

It’s not a matter of her 5th amendment responses entirely. It’s possible for the questioners to put the facts of the case in front of the people with their questions and then witness the the liar trying to avoid perjury.

This is very damaging to the IRS and the administration. Lois should get the message from this that the question is now about her sentence not her guilt. It’s very likely there are multiple witnesses to her activities.

virgo on May 24, 2013 at 2:03 AM

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