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.
And just what 'law firm' are these lawyers working for?
The best part of that is the InJustice Department then becomes the vehicle for the prosecution of those charges.
Holder in on the hot seat already for Fast & Furious, AP and Fox News phone records And Nero has publicly said he wants those reponsible held accountable.
No way are they going to let her slide. Not even the liberal press will give them a pass on that move.
Now he may pardon her on his way out of office, but she will do time until then.
I think you have an insight here.
Is this ne’er-do-well still employed by Uncle Sam? I know I’d have been fired if I ever tried some monkeyshines like this.
Well DUH...everyone expects that level of accountability, except perhaps this criminal administration.
I believe, only if it is shown to be an issue of national security. 10491 modified 10450 and does not stand alone.
Since this is not a criminal or civil trial but, rather a forum of inquiry , then she can make a limited statement and then invoke the 5th amendment i, which precludes her from possible self incrmination in a future process of criminal or civil action.
I think she’s constitutionally entitled to assert the Fifth.
However, I also think she’s perjured herself by trying to have her cake and eat it too. That is, she first proclaims complete innocence in the matter and then takes the Fifth. (Her follow-up comment that the Fifth is there to protect the innocent is just wrong; it’s there to protect the guilty from having to incriminate themselves.)
So, her two positions are:
1) I’m completely innocent (presented as a statement of fact, not opinion)
2) I’m invoking the Fifth Amendment because I believe my testimony might possibly be incriminating in some way. (Whether she thinks the odds are slim of her testimony being self-incriminating is irrelevant; invoking it directly implies that she fears incriminating herself with her testimony.)
She can’t have it both ways. Either her statement of fact (her proclaimed innocence) needs to be formally withdrawn, or her invocation of the Fifth. One or the other is a lie. If she’s is in fact innocent she has nothing to fear in testifying and can’t invoke the Fifth without lying. If she fears self-incrimination, she can invoke the Fifth, but can’t make her factual statement of innocence without lying.
In other words, if she stands by both positions, one of them is an obvious lie and she should be judged guilty of perjury.
Again, I have no problem with her taking the Fifth, but if she does, she has to also recant her statement that she is innocent. If she won’t, compel her testimony and find her in contempt if she refuses.
The reason no one has seen anything like this before is because no one should try what she tried. It’s not a tenable position and should subject her to perjury charges if she stays with it. (I’m not a lawyer, but I’m surprised her lawyer would let her try what she did.)
I knew this, the question is why Issa didn’t know this. He’s been a huge disappointment.
It can take a long time for anyone to be prosecuted. The Obama loyalists will presumably do everything they can to shield him...and he can turn around and pardon them, any time after the 2014 elections.
IIRC, Lerner was in charge of the Federal Elections Commision durint the elections for Obama where voter fraud was rampant. She is a crook from the first jump, and an Obama sycophant.
The revolution will get her, also. We have a targert rich environment which grows every day.
Was Issa given information before testimony that she would plead 5th?
Somewhere I THINK I read that he was given her intention to plead the 5th and that he had the information the night before she appeared before hearing and pleading the 5th.
It looked to me that Issa and Gowdy had this plot ready, knowing how arrogant this witch is.
I think I heard it was Ike's. Could be wrong.
Let her fall. Our 'Constitution' still stands, in spite of precedence of liberalism through the years. NO taxation/mandates without representation.... Hear that Boneher... YOU work for US and YOU Boneher have the power of the purse strings.... government wide.
-——she couldn’t resist citing -——
I believe she was coached but being the arrogant bitch acolyte she is, lost control and ad libbed.
Bottom line, she was unable to resist putting forward the lie.
If justice doesn’t prevail then possibly injustice will.
These fall guy ploys do not work unless the prosecution, that is the Republicans on the committee agree to the derailment implied.. They are attempted, though.
Anyone know the year Lois Lerner begin working at IRS? Did she leave the FEC and immediately begin working in her current position at the IRS? Was it an appointment?
If it’s not an Obama EO, I’d bet a whole case of lager that he won’t enforce it.
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