Lois Lerner had the right to remain silent . . .

. . . but not the ability, as Ron White would say.  So did Lerner waive her Fifth Amendment privilege against self-incrimination, or is Issa just being a big old Republican meanie?  I took some heat on this subject at Rhymes with Cars and Girls, where they think that a self-respecting libertarian shouldn't be so cavalier about the bill of rights.  I don't call it cavalier.  There's solid precedent that prevents a potential target of criminal prosecution from telling his side of the story under oath and then clamming up when it's time for his testimony to be challenged on cross-examination.  Lerner should be intimately familiar with these rules:  she has a law degree and in fact started her career as a staff attorney in the criminal division of the U.S. Department of Justice.  I find it ironic that a taxpayer cannot invoke his right against self-incrimination as a basis for refusing to file a federal tax return (United States v. Sullivan, 274 U.S. 259 (1927)).   There's no need to weep for Lerner, who in all unlikelihood has held more than one potential defendant to tough standards in the area of self-incrimination.

Even Alan Dershowitz, the archetypal defense lawyer and lifelong liberal Democrat, thinks the case for Lerner's having waived her Fifth Amendment rights is "open and shut," and that if she was advised that she could get away with prefacing her invocation with a exculpatory statement, then her advisors committed legal malpractice.  It's possible, of course, that she didn't get any advice, but relied on what she took to be her own expertise.  It's also possible that she got "legal" advice from someone inside her own political bubble, in which case she should have known better.

To be fair, there is wiggle room here.  One good question is whether Lerner's self-serving opening statement constituted "facts," or only a vaguer "opinion."  Did she merely declare her own innocence, or did she go farther and attempt to testify about specific facts?
I have not done anything wrong.  I have not broken any laws, I have not violated any IRS rules or regulations and I have not provided false information to this or any other congressional committee.
Granted, you could say it's somewhere in the gray area between fact and opinion.  Fifth Amendment waiver is "not to be inferred lightly."  Still, at the very least, she was skating out there on the thinnest part of the ice.  A good rule of thumb if you think you're in taking-the-Fifth territory is, "Am I making this statement in order to get my side of the story on record?"  If so, shut up.

What happens if Lerner refuses to testify in spite of Congress's insistence that she waived her right to remain silent?  My guess is not much.  Eric Holder was held in contempt of Congress.  Remember what a big deal that wasn't?  He didn't even lose his job, let alone do time.  Dershowitz claims that Congress has a little jail cell somewhere down in its basement and that it can arrest a recalcitrant witness, but I'm not holding my breath.

So is Lerner quaking in her pumps?  Is she being mistreated for ugly partisan purposes?  Tell it to Scooter Libby.
on

3 comments:

  1. Grim1:06 PM

    A little research suggests that Congress does have some very limited enforcement mechanisms, which indeed appear not to be subject to Presidential pardon! "Inherent contempt," as opposed to the referring of the charge to the US Attorney, apparently hasn't been used much in almost a century. Still, it might be interesting to see the Sergeant at Arms of the House of Representatives arresting and bringing her before the House, outside the power of the executive to save her.

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  2. E Hines2:29 PM

    But Lerner’s testimony was compelled by a subpoena.

    As I understand it, her appearance before the committee was compelled by the subpoena, but not her speaking upon appearing.

    Still, I question whether the Congress can adjudge a waiver of 5th Amendment rights, or waiver of any constitutional rights. Isn't that for a court to decide?

    And in the event, were Congress legitimate in asserting such a waiver, that waiver would apply only in testimony before the Congress would it not? Wouldn't her statements there be admissible in a criminal trial, that court not having agreed that a waiver had occurred?

    I had commented in an earlier post thread that Lerner should have been granted immunity and forced to testify, but in light of my question just above, I wonder whether a grant of immunity would have effect.

    Still, regarding the Sergeant at Arms, it would suit me if she were compelled to reappear for further questioning, the committee members' five minute limit waived, the SA positioned behind Lerner's chair forcing her presence until the Committee is done with her. No potty breaks. And the same with her ilk: Werner, Miller, Shulman, et al.

    Maybe I'm just not in a generous mood regarding Federal Executive Branch persons.

    Eric Hines

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  3. RonF11:13 AM

    I think Congress should grant her immunity - thus removing her 5th Amendment rights - and compel her to testify. I think that finding out what happened and who else was involved is more important that sending her to jail. She can still be fired for misconduct; you have no right to refuse to testify to keep yourself from getting fired. But we need to know who did what and just what kind of abuse goes on in the IRS.

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