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DOJ lets Lois Lerner off the contempt hook

DOJ lets Lois Lerner off the contempt hook

Finds she didn’t waive her 5th Amendment privilege.

You all remember Lois Lerner’s contemptuous refusal to testify before a House Committee after she gave an opening statement in which she effectively testified to her defense.

The House sought a DOJ prosecution for contempt.

News that will shock no one, DOJ will not prosecute.

Politico reports:

The Justice Department will not seek criminal contempt charges against former IRS official Lois Lerner, the central figure in a scandal that erupted over whether the tax agency improperly targeted conservative political groups.

Ronald Machen, the former U.S. attorney for the District of Columbia, told House Speaker John Boehner (R-Ohio) in a seven-page letter this week that he would not bring a criminal case to a grand jury over Lerner’s refusal to testify before the House Oversight and Government Reform Committee in March 2014. The House approved a criminal contempt resolution against Lerner in May 2014, and Machen’s office has been reviewing the issue since then.

Lerner cited her Fifth Amendment right not to incriminate herself during congressional testimony on March 5, 2014, although then-Oversight Chairman Rep. Darrell Issa (R-Calif.) said she had waived that right by giving an opening statement at a hearing 10 months earlier when she asserted her innocence. Issa wanted her charged by the Justice Department with criminal contempt of Congress for failing to answer questions about her role in the scandal….

However, Machen said DOJ lawyers determined that Lerner “did not waive her Fifth Amendment right by making an opening statement on May 22, 2013, because she made only a general claims of innocence.”
Machen added: “Given that assessment, we have further concluded that it is not appropriate for a United States attorney to present the matter to the grand jury for action where, as here, the Constitution prevents the witness from being prosecuted for contempt.”

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Comments

More corrupt officials get off under this transparent administration.

    Midwest Rhino in reply to Mr. Izz. | April 1, 2015 at 5:39 pm

    They are indeed becoming more and more transparent, but I don’t like what they’re revealing.

    MattMusson in reply to Mr. Izz. | April 2, 2015 at 9:28 am

    If I lived next door to Ronald Machen in DC, I would have to go next door, drop trau and leave him an Easter Egg.

Gee, the Obama criminal cabal declines to punish one of its own members.

What a shock.

The Just-Us Department … what a surprise … NOT.

Anytime someone finds themselves behind the Defense table with the DOJ on the other side, just plead the 5th during trial but profess your innocence in either opening- or closing-arguments!

How cool is that?

The masks are all off now. No one in the Obama administration is even bothering to pretend anymore.

Could any of us have done what Louis Lerner did, or the non-governmental equivalent of it, and hoped to have gotten away with it? We’d have been chased and persecuted to the ends of the earth.

    Gremlin1974 in reply to pesanteur. | April 1, 2015 at 5:37 pm

    No but since conservatives are generally more ethical, moral, and unbiased than our left leaning “friends” it is most likely that we would never even have considered doing what she did much less gone through with it. Note that the DOJ was quick to point out that the FBI investigation is still ongoing, LMAO.

Don’t forget how Derryl Issa let her march right out of the hearing room despite being told she had effectively waved her right and needed to stay and answer questions. IMO that is because establishment republicans were just as much on board with targeting conservatives groups with the IRS as the democrats.

great unknown | April 1, 2015 at 4:41 pm

Correct me if I’m wrong, but failure to prosecute does not trigger double jeopardy. If an honest government is voted in in 2016, things could get interesting indeed. If 2016 brings more of the same, nothing much really matters anyway.

1. Special Prosecutor

2. Campaign issue

    Gremlin1974 in reply to Valerie. | April 1, 2015 at 5:39 pm

    Behoner’s real failure here, as with most of his leadership, is not taking the steps that should have been taken. This issue should have had its own select committee right after her first refusal to testify.

Bitterlyclinging | April 1, 2015 at 5:32 pm

Somebody has to reinstall the fear of the Lord into the Democratic Party, otherwise we’re liable to awake to the news one morning that during the overnight 85 of Hussein Obama’s major Conservative opponents were killed resisting arrest while The Republic and the Constitution have now been swept aside.

iconotastic | April 1, 2015 at 5:38 pm

Can’t you see Holder and Obama smirking at you and saying “what are you going to do about it (punk)?” Other than whine online, the answer is “nothing”.

Subotai Bahadur | April 1, 2015 at 5:47 pm

If there is no rule of law, what is the obligation of the people to obey any government law other than fear of extra-legal force?

I wrote this months ago, and see some of my thoughts reflected in the reasoning cited by DOJ in the above story, so I’m posting it here:

As much as I’d like to see people crucified over this, Lerner did not waive her rights. Her opening statement was analogous to an attorney’s opening statement at trial – she answered no questions. Also, a Congressional hearing is NOT a judicial proceeding, and nobody should expect it to be run like one – it is not adversarial (with a prosecutor and defense) and there is no “direct” examination (only questions from committee members); with no “direct” there can be no “cross” examination. Also, committee members may ask any questions they please. In a direct/cross examination process, the cross examination is generally limited to subject matter that is broached during direct examination. The fact that congressional committee members are not so restricted in their questioning should alone be sufficient to demonstrate that a committee hearing does not follow (and does not include) the judicial process of direct- and cross-examination, and is therefore sufficiently dissimilar to a judicial proceeding that similar rules do not, or should not, apply.

At trial, person can’t “plead the fifth” after beginning to answer questions on direct examination in order to prevent the witness from avoiding cross-examination. In a Congressional hearing, there is no “cross,” so even a witness who answers some questions can (or at least, should be able to) invoke her Fifth Amendment rights in response to any particular question. The invocation of the right should not prevent a witness from answering subsequent questions. Again, the purpose for not permitting such conduct at trial is missing from Congressional hearings; there’s no reason to invoke similar rules because witnesses can’t use their rights to evade a non-existent cross-examination.

Lerner’s statement of “facts” was made under oath. If it is determined that she lied when she made her statement, she can still be prosecuted for perjury.

    healthguyfsu in reply to DaveGinOly. | April 1, 2015 at 9:17 pm

    She needs to be granted immunity. Then, she can’t plead the 5th and would be forced to testify regardless. If she refused to testify after that, then, yes, she would be in contempt.

      DaveGinOly in reply to healthguyfsu. | April 2, 2015 at 3:21 pm

      Although that could happen, I have a problem with that too!

      Immunity from prosecution was originally a bargain made by a person who agreed to voluntarily surrender his right to remain silent in exchange for immunity from prosecution. This has been corrupted into the imposition of immunity in order to compel testimony and force surrender of the right. Where is the due judicial process (grand jury, indictment, trial, conviction by a jury) by which such a witness loses his right to remain silent? Government can no more take away your right to remain silent (or any other right) with the act of one of its prosecutors (in conjunction with one of its judges) than it can by legislative fiat. The imposition of immunity and the involuntary/forced surrender of a person’s right to remain silent is an abuse, and IMHO unconstitutional. (No due judicial process, for starters. And no, it is not due process merely because it is done within a judicial process, I listed the steps of due process above – where is the conviction by which the person loses his right to remain silent? Conviction for a crime is supposed to be the only way we can lose a right in this country.)

        Owego in reply to DaveGinOly. | April 2, 2015 at 5:53 pm

        Again, I think I understand what you’ve said, but the final sentence is where I have a question. ” Conviction for a crime is supposed to be the only way we can lose a right in this country.” Haven’t the groups targeted by Lerner and the IRS lost rights? What recourse have they against the Lerners of the world? Behavior such as hers and theirs seems to be running rampant within the government and its agencies.

    Sammy Finkelman in reply to DaveGinOly. | April 1, 2015 at 9:23 pm

    The theory under which the 5th amendment can be used to avoid answering ANY questions is that it reflects a fear of interrogators hunting for some statement that could be used against them – if, however, someone started answering questions, some lawyers argue it is waived.

    Of course this is very convenient for people who want to argue that a 5th amendment claim is not an admission that some unspecified crime was committed.

      DaveGinOly in reply to Sammy Finkelman. | April 2, 2015 at 3:09 pm

      You’re referring to judicial process. And, as I explained, there’s a reason why the right is waived once you start answering questions in a judicial proceeding – the initial questions are asked on direct examination. If you could assert the right after you start answering questions, you could avoid cross-examination. The bar to asserting your right after you begin to answer questions in a judicial proceeding exists to prevent you from escaping cross-examination. Because there is no direct- and cross-examination process in a congressional hearing, the reason for not permitting assertion of the Fifth Amendment after answering some questions at trial does not exist at a hearing.

      Why can’t a person being questioned refuse to reply to a question when they know that the answer could be used against them? That’s the very reason for the Fifth Amendment’s existence! Why would you deny it so someone when there’s no procedural purpose (as there is in a judicial process) for the denial? Also note the Lerner didn’t respond to any questions, she merely made a statement. As I pointed out, this is analogous to a defense attorney’s opening statement in a judicial proceeding – and this is NOT a judicial proceeding. Why would anyone presume to apply the same rules?

Such is the problem with having a weak schumuck like Boehner leading the GOP House and another weak schmuck like McConnell leading the GOP Senate.

What clusterf***

Congratulations, GOP voters. Hope you’re happy.

None of this prevents the next AG from prosecuting, as far as I can tell.

Statute of Limitations won’t be up, and this is just the current prosecutor’s discretion not to pursue the case.

Just a citizen so, what do I know? Nevertheless, it seems to me that the real “victims” here (how I hate to use that word) are Congress and the country. It’s a certainty that contempt for Lerner, her superiors, and her minions is deep, widespread, and appropriate. This ruling seems certain to embolden contempt for The Legislature in two places; among those in government like her and within its agencies and bureaucracies against whom we have no other recourse than to turn to the legislature when needed; and in the population at large whose disgust with Congress is now almost universally low. The Lerners of the world see it as a toothless, annoying nuisance and voters see it as just plain toothless. It is not a good thing for the country.

Okay, citizen done – lawyers and attorneys can now proceed.

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