Lois Lerner famously purported to invoke the 5th Amendment privilege against self-incrimination yesterday while appearing before Congress.

A number of people have reached out to me to ask me to write about it.  Unfortunately, it’s outside my area of experience and I don’t have time to research it. I’m generally familiar with the issue, as it has came up from time to time when I was in private law practice, but only generally.

I know enough to spot the issues, but not enough to provide the answers.  So here’s my issue spotting:

Lerner gave a fair amount of information in the first couple of minutes of her testimony, including her personal background, her background at the IRS, who she supervises, and whether she has complied with the law with regard to those duties.

It’s not that Lerner professed innocence, it’s that she opened up the topics related to the innocence.

More important, the critical moment was not her introductory statements, but that she testified after invoking the privilege, when she attested that written answers provided to the Inspector General, and then given to Congress, were her answers. 

It comes at 3:00 in this video:

Q. So it is your testimony that as far as your recollection, that is your response.

A. That’s correct.

So having invoked the privilege against self-incrimination, Lerner nonetheless gave testimony as to her previous answers that were part of the hearing record and which covered the very issues the Committee was considering, and the underlying facts regarding her claimed innocence. That, to me, is very significant.

So those are the issues I’ve spotted. But I don’t have the answer to whether that was a waiver.

For the answer I’ll defer to Alan Dershowitz (video via Hot Air):

That analysis seems right to me. Based on my general understanding.


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