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.