The controversy over Lois Lerner’s exercise of her 5th Amendment rights started almost as soon as she invoked them. By professing her innocence in a statement before refusing to answer questions, Republicans charged that she had waived her right to remain silent — a view taken by some constitutional scholars as well. Yesterday, the House Oversight Committee ruled that Lerner had waived her right against self-incrimination, and will call her back to testify under oath:
The House Oversight and Government Reform Committee passed a resolution today finding that senior IRS official Lois Lerner waived her Fifth Amendment right not to incriminate herself at a hearing last month.
Lerner, the IRS director of Exempt Organizations who is at the center of the IRS political targeting controversy, refused to answer questions from members of the committee at the May 22 hearing.
The resolution passed down party lines, 22-17. The vote today means the committee’s subpoena remains in effect, although a date for Lerner’s next appearance, where she will retain the right to once again invoke her Fifth Amendment right, has not been announced.
Democrats opposed the resolution, demanding a hearing on the matter to hear testimony from experts on the matter. Republican committee member and former prosecutor Trey Gowdy scoffed at the demand, saying that “I don’t need law professors to come for a second hearing and read me the case law. … You don’t get to tell your side of the story and then avoid the very process that we have in this system for eliciting the truth.”
The subpoena remains in force, assuming a court challenge doesn’t overturn it. If courts refuse to intervene, Lerner will eventually have to show up — although it’s far from clear that the outcome will be any different. Her attorney insists that Lerner will once again refuse to answer questions on the basis of potential self-incrimination. This time she might be a little smarter about it by keeping her mouth shut, but under the same conditions as her first appearance, the outcome will almost certainly be identical.
What if the circumstances were different? National Review’s Eliana Johnson reports that Oversight may want to cut a deal for some limited immunity to get Lerner to talk:
Committee chairman Darrell Issa suggested he is poised to call Lois Lerner back to Capitol Hill in the wake of a House Oversight Committee vote on Friday that found she waived her Fifth Amendment right not to testify about the IRS’s targeting of tea-party groups. “The Committee remains focused on hearing Ms. Lerner’s full and truthful testimony,” the Republican congressman said in a statement.
Lerner, the former head of the IRS’s Exempt Organizations division, professed innocence before the committee in May before pleading the Fifth, setting off a debate about whether she had waived her rights. …
A source familiar with the Oversight Committee’s proceedings, tells National Review Online that Issa is “dubious” Lerner will testify willingly. The committee, says the source, ”would hear any offer from Ms. Lerner or her attorney” in order to facilitate her testimony; that could include an offer of limited immunity in exchange for it.
Are they ready for that kind of a deal, though? Right now, the only solid indication that Lerner should fear criminal prosecution was her flawed attempt to take the 5th. Unless the committee has a smoking gun showing Lerner’s guilt of an actual crime, I think this is a long shot. Perhaps they may just let Lerner cool her heels and work to develop a case around her, putting her in a position where all her escape routes are cut off except cooperating under an immunity grant.
You can lead a horse to water, but you can’t make it drink … unless you make sure it’s very thirsty by the time it gets there.