Posted on 05/23/2013 7:22:56 AM PDT by billorites
Lois Lerner, the IRS official in charge of tax-exempt groups, took her too-clever-by-half act to Congress yesterday and may have waived her right to claim her Fifth Amendment privilege in the process. Appearing before the House Oversight and Government Reform Committee, she couldn’t resist citing a little history, bragging on her public service, instructing the committee as to the purpose of the Fifth Amendment, and proclaiming her innocence of everything the committee might be interested in — all before asserting her Fifth Amendment privilege.
Chairman Darrell Issa (R., Calif.) was a bit taken aback. He had never seen anybody try that before. Neither had I. Witnesses and lawyers know, or should know, that you can’t selectively invoke the Fifth Amendment — that is, partially testify. That is why, if a decision is made to take the Fifth, a lawyer will instruct his client to invoke it after almost every question, after identity is established, out of an abundance of caution. You don’t want your client to unintentionally waive the privilege.
he reason for the “selectivity” rule is to prevent the distortion of the record or the perversion of justice. What if a witness testified as to his side of the story and then took the Fifth on cross-examination? No fair. So now Issa is planning to call her back and take the position that she waived the privilege and must testify or, presumably, face contempt charges. So did she waive the privilege? As you might expect, the matter is not quite as simple as it appears.
As best I can remember, there is no case on point involving a congressional hearing. Although court cases, both criminal and civil, are applicable, though somewhat different standards are applied, the general rule as to waiver is as I’ve stated. Even in the court decisions, however, there is probably no case on point. As I stated, people simply don’t usually get themselves in this position. Also, the cases are very fact-specific.
No two cases are alike. However, in light of the purpose of the waiver rule, I think Ms. Lerner has a real problem. And it’s not just because of the statement she made yesterday. Apparently, Ms. Lerner made statements to the committee or committee staff before yesterday, either in person, answering written questions, or both, regarding the committee’s IRS-targeting investigation. The courts have held that a person can be deemed to have waived the privilege in prior testimony if the testimony was part of the “same proceeding.” Seems pretty clear that it was: For example, one court has held that grand-jury testimony was part of the same proceeding as the subsequent trial. So if, in prior testimony, she revealed an incriminating fact, the privilege cannot be invoked to avoid discussion of the details.
Then add the fact that Issa got her to verify at least some of her prior written statements yesterday, and supplement that with her statement as to her innocence, etc., and one must conclude that she may pay dearly for her little moment of indulgence. It was about as clever as planting a question in an out-of-the-way conference on a Friday afternoon in order to have the scandal dribble out mainly unnoticed. It may well get the same results.
“I don’t recall.”
She has the Chicago mob and the IRS (Yeah. I know. Redundant.) backing her up. She’ll do fine. Probably get promoted again.
Has F. Lee Levin weighed in on this yet?
I still think that this was advice from her counsel that morning as a way to request immunity from prosecution before further testimony.
She did it rather awkwardly, but Issa mentioned ‘immunity’ so I believe that is ‘in the works’.
Is Lois Lerner the designated fall guy? Did her “expert counsel” advise her to take the course she took in the questioning in order to take the Fifth off the table? She said what she said as if it were thought out and planned. I doubt she understands or did the planning, though.
In accordance with Executive Order 10491. Any Federal Employee who invokes the 5th Amendment before congress. They are terminated.
I watched the video and it seemed to me that Issa’s was reading from a prepared/scripted sheet, everything from asking her to confirm the IRB to advising her to speak with counsil and excusing her for recess. It could be that Issa was prepared with multiple responses depending on how she reacted to his “trap”. Watch the video and let me know what you think.
Haul her ass back into the hearing room. Advise her that she has waived her 5th amendment rights. If she refuses to testify, find her in contempt of Congress and put her in a nice jail cell until she changes her mind.
That will send a message to everyone involved.
In accordance with Executive Order 10491. Any Federal Employee who invokes the 5th Amendment before congress. They are terminated.
In accordance with Executive Order 10491. Any Federal Employee who invokes the 5th Amendment before congress. They are terminated.
If only there was a way to make that jail cell one in GITMO.....
This reminds me of the “Untouchables” or “Hogans Heros”. Nobody knows nuttin’ and therefore nobody can be held accountable.
When they start handing out those cards that say “Go directly to Jail. Do not pass GO”.... that’s when some memories are going to be refreshed.
When they start handing out those cards that say “Go directly to Jail. Do not pass GO”.... that’s when some memories are going to be refreshed.
Is EO 10491 an Obama EO?
(And I don’t particularly expect Obama to follow even his own rules. He cheats at every game he plays.)
Agree. I think the interchange between Issa an Gowdy was planned, and beautifully done..
RE: EO 10491. I call Red Herring.
You’re not gonna see 10491 invoked: that was an EO under Eisenhower involving the termination of employees deemed to be a national security risk - during the McCarthy ‘red scare’ era. To the contrary, this administration would probably embrace those kinds of people.
Where is the video?
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