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.