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Issue spotting Lois Lerner and the 5th Amendment

Issue spotting Lois Lerner and the 5th Amendment

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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I know Congressman Issa says he is calling her back.
What I don’t know if when she sits down again will it be a continuation and she might be told she revoked her right to the fifth yesterday or will it be fresh
and therefore she can take the fifth right at the beginning and never have to answer?

    creeper in reply to RWGinger. | May 23, 2013 at 2:20 pm

    Ginger, Issa did not close the hearing yesterday. He was quite specific that it remained open. So no, she can’t start from scratch.

Patterico (a prosecutor in real life) suggests the following sequence of questions (and riffs thereon):

“1) Did you do anything wrong?

2) Do you think that it would be wrong to target conservative groups because of their ideology?

3) Did you target conservative groups because of their ideology?”

He suggests that there is no good place for her to fall back on the 5th Amendment in this sequence, given her original appearance.

    Owego in reply to caseym54. | May 23, 2013 at 6:21 pm

    Feels good, but to what purpose. She’s already said she did nothing “wrong,” violated no laws (the only thing that means anything), and violated no IRS regulations.

    Let the debate begin. Wrong feels good, means nothing. Laws? Which law? Does it apply here? And when was the last time anyone knew exactly what a law meant, anyway? (Listen to Alan Dershowitz’s interview). Violated an IRS regulation? As a manager, a government employee, or a taxpayer? Now, there’s an idea.

    My money says not much happens here. I hate it.

    otbricki in reply to caseym54. | May 24, 2013 at 11:08 pm

    Why should she say anything? Every time she does the hole she’s in gets deeper.

    If they cite her there is still a long path to punishment for contempt which includes a good chance that a judge will rule she didn’t waive privilege. If that happens it will make Issa and the House look like a bag of idiots. Even if she gets convicted the max penalty is one year.

I’m wondering if she wants to testify and made this “error” on purpose. Maybe she feels she can win immunity by taking down the administration and save her own neck in the process?

    snopercod in reply to heimdall. | May 23, 2013 at 3:14 pm

    I agree with your premise, but have a different explanation. When she invoked the Fifth, my first reaction was, “So what will Congress do about it – beat a confession out of her?” With that in mind, could this be a setup to make it appear that the e-e-e-vil Republicans are “beating up” on that nice woman? Just a thought…

      heimdall in reply to snopercod. | May 23, 2013 at 3:36 pm

      Yeah, but would she be willing to go to jail just to make the republicans look bad?? I don’t think so and I don’t think that Obama wants to open that can of worms by pardoning her after she’s in contempt of congress.

      If she is willing to do this, despite the possibility of jail time, then we really need to be scared, because the brainwashing in this administration is REALLY good to inspire this kind of loyalty to Obama.

        snopercod in reply to heimdall. | May 23, 2013 at 3:57 pm

        I don’t think you can go to jail for contempt of Congress. Maybe someone here knows the details, but I’m under the impression that Congress has to file a criminal case before a real judge for that to happen. Am I wrong?

          heimdall in reply to snopercod. | May 23, 2013 at 4:35 pm

          You can be put into the congressional jail for being in contempt of congress under inherent contempt, but it only lasts until the current session is over.

          They would need to follow the statutory route and refer to the district attorney of DC and a grand jury for a longer sentence.

          otbricki in reply to snopercod. | May 24, 2013 at 11:40 pm

          Two possible routes. A trial before the full House, which would be a farce. The last time that was done was 1934.

          The other is the statutory process. Only ONE person was ever convicted that way, Rita Lavelle, Reagan’s crooked EPA commissioner.

          The statutory process would have to include a finding that Lerner gave up privilege with her disclaimer. Judges generally don’t like to make a ruling that someone unintentionally gave up their privilege. For example courts have ruled that Miranda waivers must be intentional. See Rosenthal v. New York Life Ins. Co., 99 F.2d 578 (8th Cir. 1938). Also the Supreme Court has specifically ruled that the Fifth Amendment is available to one who has proclaimed their innocence. Ohio v. Reiner, 532 U.S. 17, 21 (2001). I think it’s pretty unlikely that Lerner would be convicted in a contempt trial.

Henry Hawkins | May 23, 2013 at 3:06 pm

NRO’s Andrew McCarthy relates his prosecution of someone who did the same thing as Lerner, re: the 5th:

Long story short: defendant makes self-serving opening statement and then invokes the 5th, is ultimately convicted of contempt for it, among other charges.

    otbricki in reply to Henry Hawkins. | May 24, 2013 at 11:52 pm

    The National Review actually printed that? That’s really TERRIBLE journalism.

    The Supreme Court of the US overruled this and stated specifically that the defendant has a right to assert innocence than then take the 5th. Ohio v. Reiner, 532 U.S. 17, 21 (2001).

    “This Court has never held, however, that the privilege is unavailable to those who claim innocence. To the contrary, the Court has emphasized that one of the Fifth Amendment’s basic functions is to protect innocent persons who might otherwise be ensnared by ambiguous circumstances. Grunewald v. United States, 353 U. S. 391, 421. Batt had “reasonable cause” to apprehend danger from her answers if questioned at respondent’s trial. Thus, it was reasonable for her to fear that answers to possible questions might tend to incriminate her.
    Certiorari granted; 89 Ohio St. 3d 342, 731 N. E. 2d 662, reversed and remanded.”

MaggotAtBroadAndWall | May 23, 2013 at 3:17 pm

Joe diGenova, who served as a special prosecutor for the House before, says she did waive her 5th Amendment rights.

(stay until the end when diGenova tells Obama’s former economic guru Austan Goolsbee the administration only knows how to do one thing – to lie.)

Look at it this way: we can litigate the matter and have it clarified by SCOTUS in three years or so, or we can call all of her subordinates to testify exactly what she did, said, and ordered in regard to these matters.

It seems to me Issa is being distracted by something shiny, which is exactly what Obama needs right now.

Quick and dirty…

You cannot use anything as a sword, then try to use it as a shield.

As Prof. Jabobs, this is not my area of expertise, but there are civil law corollaries.

You only need listen to the first four minutes of the Dershowitz interview re the fifth, the rest is background filler.

She shouldn’t have been allowed. (but, she did.) Malpractice. (Oh, please.) Getting her story out there without responding to questions. (Of course.) That’s just not how the law works. (Certainly it is.) And the gem, “…the political decision here trumps legal niceties…” Ah yes, the legal niceties. Everything’s debatable in Washington, it’s what they do. That’s why the jail in the basement is small and never used.

Wonder who’s paying her—any of their—legal bills? No consequences.

Meanwhile, back in congress with the immigration bill… It’s simply not possible to keep track of all the miscreants anymore. Thank you for professor for reminding us that even while the Big Top’s up the they’re still chipping away in the back room.

Doug Wright | May 23, 2013 at 6:44 pm

There was a fascinating blog recently about the Internal Revenue Code and its application to IRS employees; One part of that blog addressed IRC 1203. One implication I got from that blog was that an IRS employee who refuses to answer questions regarding his or her actions can be dismissed! If that’s correct, please do dismiss her and force Obama to get another sycophant to run Obamacare!

Also, if the House does not use the Rule of Law and procedure to get answers regarding this IRS scandal, and those concerning Benghazi, then what oversight responsibilities does Congress in fact have?

huskers-for-palin | May 23, 2013 at 6:55 pm

My advice to Lerner…

1. Don’t cross any black cats
2. Avoid walking under any ladders
3. Stay at home on any Friday the 13th
4. Don’t roller skate in a buffalo heard
5. Don’t spit in the wind
6. Don’t step on Superman’s cape
7. Avoid Fort Marcy Park
8. If you drink tea, have geiger counter nearby.

Juba Doobai! | May 23, 2013 at 10:01 pm

Unfortunately, it’s outside my area of experience and I don’t have time to research it. I’m generally familiar with the issue, …, but only generally.

I know enough to spot the issues, but not enough to provide the answers.

Wm, you’re a prince, a bloody prince! Not too many profs would have admitted this. Thanks for the honesty; it’s one of the reasons yours is one of the best blogs around.

living da dream | May 24, 2013 at 10:08 am

Her sig-other has an interesting bio … Search and see for yourself. Much lawyer work to be done.

Replying to heimdall | May 23, 2013 at 4:35 pm

You can be put into the congressional jail for being in contempt of congress…

Sorry, but there IS NO “congressional jail”. Source: CNN Searches for Capitol’s ‘Jail’ in Report on Libs’ Desire to Arrest Rove