Alan Dershowitz: Issa’s right, Lerner waived her right against self-incrimination and should be required to answer questions

posted at 11:21 am on May 23, 2013 by Allahpundit

Yesterday I gave you an expert’s skeptical take on whether she inadvertently waived her Fifth Amendment right. Today, via Newsmax, here’s another expert with the inevitable “au contraire” — and he’s not hedging his bets either. Watch the clip and you’ll find him treating this as an easy lay-up for Issa in court; he actually uses the term “open-and-shut case” and accuses her lawyer of malpractice for letting her give a statement. Is he right? At the Volokh Conspiracy, Orin Kerr says it’s hard to tell because there simply isn’t much precedent. The case may turn on the specifics of the statement itself: Remember, she went so far as to say she’d done nothing wrong. Is that an assertion of fact, in which case she should be made to answer questions challenging that assertion? Or is it something more like a plea in response to a charge?

The tricky part is how to characterize Lerner’s testimony before she invoked the Fifth Amendment. On one hand, if you say that Lerner merely expressed her view that she is innocent but did not actually testify as to any facts, then you could say she did not waive her rights with her statement. Questioning would not be about the details of facts she already testified to, but rather would require her testimony on a subject she declined to testify about. On the other hand, if you say that Lerner’s reciting the allegations and then denying them effectively testified about the allegations, then you could say that she did testify and did waive her rights. From that perspective, she already testified about “the subject” by saying that she did not violate any IRS rules or submit false testimony, and further questioning would be about the details of why she thinks that.

I’m not enough of a Fifth Amendment nerd to have strong views on which side is right. So I posed the question earlier today (based on press reports of what Lerner said, not the full transcript) to a listserv of criminal procedure professors that includes some serious Fifth Amendment experts. Opinions were somewhat mixed, but I think it’s fair to say that the bulk of responders thought that Lerner had not actually testified because she gave no statements about the facts of what happened. If that view is right, Lerner successfully invoked her Fifth Amendment rights and cannot be called again. But this was not a unanimous view, it was not based on the full transcript, and there are no cases that seem to be directly on point. So it’s at least a somewhat open question.

That’s one theory, that the privilege was waived because of the particulars of what Lerner said. The other theory, expressed yesterday by law prof James Duane, is that the setting matters more than the content of what she said. Simply put, Congress isn’t a courtroom. Lerner’s not a criminal defendant. She’s a witness in an investigation, and a witness can be selective in deciding which questions she wants to answer. The downside for her in asserting the privilege is that, while juries aren’t permitted to draw a negative inference from the defendant’s decision to remain silent, there’s nothing barring the public from drawing whatever inferences they want. That’s the point of bringing her back for another round of questioning. Even if Issa lets her slide by not holding her in contempt if she re-asserts the privilege (contempt would send the matter to court), forcing her to invoke it serially in response to dozens of questions will look shady as hell. Her choice.

If you can spare the time, watch the full vid for Dershowitz’s thoughts on Obama’s double standard regarding leaks that hurt the administration versus leaks that make them look good, like the big “kill list” revelation in the Times last year that showcased President Badass bringing down the hammer on suspected jihadis five months out from the election. There is indeed one law for his friends at the NYT and one law for Fox News.


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Comment pages: 1 2 3 4

Of course she would need to be asked the right question, but she didn’t want to incriminate herself so she took the 5th. You can only do that if you could possibly incriminate yourself…

thinking out loud.

petunia

Anyone who opens their mouth during these kind of things puts themselves at risk of incriminating themselves, whether they’ve done anything wrong or not. Just ask Scooter Libby and Martha Stewart.

xblade on May 23, 2013 at 4:00 PM

The Obama Administration:

o State Department: Entrusting / hiring the security of our Ambassador & Americans to Al Qaeda…

o DOJ: Wire-tapping our media, their parents, & labeling reporters as possible traitors/spies

o IRS: Targeting the President’s / Socialism’s / the Bannanna Republic’s enemies….

o Homeland Security: Targeting the President’s / Socialism’s / the Bannanna Republic’s enemies….’protecting’ the IRS from the TEA Party

o ATF: Targeting the President’s / Socialism’s / the Bannanna Republic’s enemies….called in to investigate ‘subversive’ conservative group that promotes fair/ethical voting practices during elections…

o FBI: Targeting the President’s / Socialism’s / the Bannanna Republic’s enemies….called in to investigate ‘subversive’ conservative group that promotes fair/ethical voting practices during elections…

o Obama: Targeting / Killing Americans with drones, over all these other scandals, & telling college students not to listen to the ‘conspiracy nuts’ telling them ‘you’ can’t trust the government…

easyt65 on May 23, 2013 at 4:06 PM

Actually yes, he said she could be held in contempt. That means it would be illegal for her to refuse to answer. She could be jailed for it.

kaltes on May 23, 2013 at 4:00 PM

Oof. I knew I had that coming as soon as I hit submit.
The question, to me anyway, is did she waive her rights.
I feel she did.

Jabberwock on May 23, 2013 at 4:10 PM

That screen cap looks familiar

Now where has I seen that look before…?

Akzed on May 23, 2013 at 4:20 PM

I have NO evidence of this…and I can’t really imagine a situation that would motivate such an approach.
But maybe I’ll get some cred here for being able to pull suggestive nefarious angles out of thin air?
:)

verbaluce on May 23, 2013 at 3:47 PM

If Obama wants to fire her she’s got motive right there, as I said in this thread.

They deserve each other. She did this to help him win. Now they are both in a pickle.

Schadenfreude on May 23, 2013 at 4:22 PM

The IRS has to fire people for breaching constitutional rights…of many citizens…who pay to sustain the tyrannical gov’t.

The land is out of control. Capos run her.

Schadenfreude on May 23, 2013 at 4:24 PM

TERMINATION: “I’m quite surprised that no one has mentioned Section 1203 of the Restructuring and Reform Act of 1998, which mandates terminations of IRS employees who commit any of what are known in the Service as the ’10 Deadly Sins.’ . . . At any rate, you’ll notice that several of these provisions could be applicable in the present instance, notably (b) (2), (b) (3) (A), and (b) (7). If I were Ms. Lerner, Mr. Miller (who relied heavily on 6103 in his testimony), or anyone in that chain, 1203 would be a huge concern. It is for every Service employee, which is why I and others were always very cautious about taking unapproved initiative in areas that skated close to 1203.”

HT: IP

Akzed on May 23, 2013 at 4:30 PM

Fair enough. I disagree. I think we will see where this falls out in the next few days.

blink on May 23, 2013 at 5:11 PM

We may never find out.

Interesting enough, can she still avoid answering to the committee by claiming that DoJ is now actively conducting a criminal investigation of her IRS Dept. Would her being part of that investigation, compel the committee to NOT question her ?
Kind of like Holder recusing himself from the AP issue.

I am lost on this

Jabberwock on May 23, 2013 at 5:22 PM

What absolute gibberish. You have a constitutional right to tell your boss he’s a jackass. You have a constitutional right to insult you fellow employees. You have a constitutional right to do any of a million things that would get you fired at any job.

RINO in Name Only on May 23, 2013 at 4:00 PM

Ok, random hostile internet person, maybe you dont understand the basic concepts of Constitutional rights.

All the 1st amendment says in relevant part is that Congress can’t make laws “abridging the freedom of speech”. I don’t know how you go from that text, to claiming that you have a right to be a terrible employee.

The IRS is not a private company, it is part of the government. If the IRS retaliated against an employee for taking the 5th by firing that employee, yes, there would be a lawsuit.

kaltes on May 23, 2013 at 5:24 PM

The IRS is not a private company, it is part of the government. If the IRS retaliated against an employee for taking the 5th by firing that employee, yes, there would be a lawsuit.

kaltes on May 23, 2013 at 5:24 PM

Not so sure about that. If there are rules for conduct as an IRS employee ( Employee Handbook ) and those rules are clear as to what constitutes a fireable offence. And taking the 5th is one, then she can be fired. At that point it is not retaliation, but rather for cause.
I will admit that I do not know what the IRS rules of employment are.

Jabberwock on May 23, 2013 at 5:37 PM

blink on May 23, 2013 at 5:11 PM

The committee room dialog between “Trey” Gowdy and Lerner’s attorney, William Taylor III (who may have to overcome potted plant syndrome), could be Trey intéressant.

Barnestormer on May 23, 2013 at 5:46 PM

Not so sure about that. If there are rules for conduct as an IRS employee ( Employee Handbook ) and those rules are clear as to what constitutes a fireable offence. And taking the 5th is one, then she can be fired. At that point it is not retaliation, but rather for cause.
I will admit that I do not know what the IRS rules of employment are.

Jabberwock on May 23, 2013 at 5:37 PM

You should google how hard it is to fire a federal employee. It is a WHOLE THING to get it done, and the government can’t tell their employees that they have to waive the 5th or get fired. There are so many problems with that I don’t know where to begin.

Think about it this way, the Fort Hood shooter IS STILL BEING PAID by the taxpayers. Wrap your head around that one. If that is going on, do you seriously think IRS employees can get fired so easily?

kaltes on May 23, 2013 at 6:13 PM

petunia on May 23, 2013 at 2:21 PM

What the heck?

How am I attacking the only person who could have saved us from 4 more years of this? How have I cost you your freedom? How have I helped Obama destroy the Constitution? Why do you accuse me of being on Obama’s team? Because I think a well know criminal defense attorney happens to be wrong about this?

blink on May 23, 2013 at 3:01 PM

Only the first part of that was aimed at you.

petunia on May 23, 2013 at 6:22 PM

Remember, she went so far as to say she’d done nothing wrong. Is that an assertion of fact, in which case she should be made to answer questions challenging that assertion? Or is it something more like a plea in response to a charge?

She wasn’t CHARGED with anything.

Yet.

GarandFan on May 23, 2013 at 6:33 PM

Lois Lerner was asked to resign but she refused.

Now she’s on paid leave.

Schadenfreude on May 23, 2013 at 10:14 PM

From Peggy Noonan’s article:

“I don’t know.” “I don’t remember.” “I’m not familiar with that detail.” “It’s not my precise area.” “I’m not familiar with that letter.”

These are quotes from the Internal Revenue Service officials who testified this week before the House and Senate. That is the authentic sound of stonewalling, and from the kind of people who run Washington in the modern age—smooth, highly credentialed and unaccountable. They’re surrounded by legal and employment protections, they know how to parse a careful response, they know how to blur the essential point of a question in a blizzard of unconnected factoids. They came across as people arrogant enough to target Americans for abuse and harassment and think they’d get away with it.

Question:

Could we get away pleading the 5th to the IRS?

itsspideyman on May 23, 2013 at 10:39 PM

Here’s the simple solution. Call her back, swear her in and let her assert the 5th on a question by question basis. Give every committee member their full time and let them ask EVERY question they can think of…including some like, “Ms. Lerner, in your opinion, is the sky Blue?”

People HATE the IRS…even those Obamaophiles who pretend to love it. A couple hundred recitations of, “On the advice of counsel…” should have just the proper impact.

Kenz on May 24, 2013 at 2:14 AM

Sorry if someone else mentioned this…..anyone think that Ms. Lerner is refusing to be the scapegoat…that she was ordered to take the 5th by, oh, say the President maybe…and she purposely lost her privilege because she wants to speak out?

Strike Twice on May 23, 2013 at 2:39 PM

Her behavior is ambivalent to say the least.

Also, don’t underestimate the effect of hubris: the powerful surround themselves with other influential people (including lawyers) and forget the relevance of expertise. The technicalities of the law don’t apply to people at their level, in their minds. It was amateur-hour and she was supported by her cheer-leader bench, whose brief-cases were movie props.

I don’t know why she did not invoke the Hillary-amendment which worked so well before with this audience:

What difference, at this point, does it make?

virgo on May 26, 2013 at 12:19 PM

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