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House Committee Claims Lois Lerner Waived Her Fifth Amendment Rights

Lois Lerner

When she appeared before the House Government Oversight Committee at the end of last month, IRS employee Lois Lerner, who has since been put on administrative leave, invoked her right not to testify under the Fifth Amendment. Before she did so, however, Lerner read a brief statement into the record in which contended that she had done nothing wrong. At the time, several members of the Committee contended that, in making that statement, Lerner had waived her Fifth Amendment rights however Committee Chairman Darrell Issa allowed her to leave rather than having to stay and invoke her rights each time she’s asked a question.  Today, though, the committee voted, in a strict party line vote, that Lerner had indeed waived her rights and that she should be compelled to once again appear before the committee:

The House Oversight and Government Reform Committee voted 22-17 on Friday that embattled IRS official Lois Lerner waived her Fifth Amendment rights during a hearing last month on the agency’s tea party targeting scandal.

The party-line vote paves the way for the committee to bring Lerner back to Congress and force her to answer questions from lawmakers.

The resolution before the committee said that by reading an opening statement proclaiming her innocence at the outset of a May 22 hearing, Lerner — who led the IRS division that allegedly singled out tea party groups applying for a tax exemption — relinquished her constitutional right to avoid self-incrimination.

“I believe Lois Lerner waived her Fifth Amendment protection,” House Oversight Chairman Darrell Issa (R-Calif.) said before the committee vote. “She made four specific denials. Those denials are at the core of the committee’s investigation into this matter.”

The committee hasn’t yet scheduled a date to recall Lerner.

Oversight Republican staff told POLITICO they’re open to pitches from Lerner’s lawyer about how she might want to testify, including the idea of granting her partial immunity that would allow her to answer questions without fear that her testimony could be used against her in court.

William W. Taylor III, Lerner’s attorney, said no decisions have been made about Lerner’s next steps because Issa hasn’t contacted them yet.

(…)

Democrats denied that Lerner waived her rights and criticized Issa for deciding that a congressional committee has authority to strip constitutional privileges from a U.S. citizen.

“I agree that she has information that is relevant to the committee’s investigation,” said Maryland Rep. Elijah Cummings, the panel’s top Democrat. “But we must respect the constitutional rights of every witness who comes before the committee.”

The panel rejected an amendment from Del. Eleanor Holmes Norton (D-D.C.) that would have instructed the committee to hold a hearing on the legal matter in question and recall Lerner’s attorney to hear his side of the dispute.

Issa dismissed calls for an additional hearing, repeatedly reminding Democrats that 37 days have lapsed since Lerner first appeared before the panel and that he consulted the House counsel for advice on the matter.

Rep. Gerry Connolly (D-Va.) said the committee was establishing a dangerous precedent.

“If we do this today, every American citizen is at risk who is ever summoned to this committee,” he said. “It could be construed that by insisting that she appear under subpoena … it constituted entrapment.”

Most likely, of course, Lerner will simply restate her invocation of the Fifth Amendment each time she is asked a question at any such hearing, at which point it would be up to the committee to seek a ruling from a Federal Judge on the question of whether or not she actually did waive her rights at that May hearing. The alternative, as the article suggests is that committee reaches some kind of agreement with Lerner and her attorney that gives her immunity as to anything that she testifies to at any further hearings so that the testimony could not be used against her in Court, or the committee could decide to grant her immunity on its own without any negotiation with Lerner’s camp. If she refused to testify after being granted immunity, of course, she would be potentially subject to a charge of being in contempt of Congress. My guess, though, is that she’d cooperate under those circumstances because there would be no reason not to.

As for the merits of the committee majority’s claim that Lerner waived her rights, I partly addressed that issue on the day of the hearing when this first came up and then again the next day:

For one thing, if Lerner is indeed brought back before the committee without a grant of immunity, and indeed all of this could just be public posturing as the parties negotiate an immunity agreement behind the scenes, then she is obviously going to continue to assert her Fifth Amendment rights regardless of whatever position Issa or any of the other members of the committee have to say about it. This means that the committee will have two choices, either they let it slide or they vote to hold her in contempt. If they go that route, then the House as a whole will also have to hold her in contempt, at which point the matter would be referred to the Justice Department. Even assuming that the Justice department agrees to prosecute, they’re going to have to convince a Federal Judge that Lerner has in fact waived her rights. I would submit that’s going to be difficult.

(…)

Given that it’s an open question, it seems highly unlikely to me that a Federal Judge is going to rule that Lerner waived her Fifth Amendment rights in any respect by making a brief, entirely generalized, statement to a Congressional Committee at a hearing to which she was subpoenaed before formally invoking her Fifth Amendment rights. Admittedly, it would have been preferable for her to remain silent altogether, but it doesn’t seem to me that what she did comes even close to being sufficient to constitute a waiver.

There’s further discussion at the link, including a discussion of a recent Supreme Court case that may be relevant to the question of what actually constitutes a statement for 5th Amendment purposes, but the basic point remains the same. Absent something extraordinary, it strikes me as highly unlikely that a Federal Judge is going to hold that a brief, mostly innocuous, opening statement by a witness appearing before a Congressional Committee under subpoena will be found to have waived their Constitutional rights. For the most part, then, I’d suggest that this a political move on the part of the Committee. Bringing Lerner back without an agreement on immunity will allow them to ask her question after question and force her to repeatedly invoke the 5th Amendment, something that the GOP will no doubt cynically exploit for the purpose of commercials and web videos.  In terms of actually accomplishing anything, it will be mostly a waste of time.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. MattT says:

    This is entirely a case where Republicans want to use Lerner as a punching bag as they create a sideshow to entertain their base. I feel sorry for Lerner, but I encourage Issa et al to continue in this course. Their base is a minority of the electorate, which is generally going to see right through this farce.

    Like or Dislike: Thumb up 5 Thumb down 0

  2. al-Ameda says:

    Welcome to Darrell Issa’s America.
    The hope is that Lois can bring down the president.

    People used to equate shadiness with “used car salesmen.” Now is the time to update that to “car alarm magnates.”

    Like or Dislike: Thumb up 9 Thumb down 0

  3. Sam Malone says:

    Nothing will stop Darrell Issa from his witch-hunting.

    Like or Dislike: Thumb up 5 Thumb down 0

  4. MikeSJ says:

    “… In terms of actually accomplishing anything, it will be mostly a waste of time.”

    Well no it won’t be a waste of time. It will be used to bolster the narrative that the Obama administration is corrupt and more importantly it will be used as a fund raising tool.

    So…it’ll make Obama look bad and make the Republicans some money.

    What else is there for these guys?

    Oops, almost forgot: Benghazi!

    Like or Dislike: Thumb up 11 Thumb down 1

  5. anjin-san says:

    The message here is clear – when Darrell Issa says “jump” the only proper response is “how high?”

    It’s always interesting to watch a constitutional conservative in action.

    Like or Dislike: Thumb up 7 Thumb down 1

  6. anjin-san says:

    @ MikeSJ

    Benghazi!

    The correct form is BENGHAZI!!

    :)

    Like or Dislike: Thumb up 8 Thumb down 0

  7. @anjin-san:

    I read that in a Sheldon Cooper voice and its almost as good as Bazinga!

    Like or Dislike: Thumb up 11 Thumb down 0

  8. Jenos Idanian says:

    Lerner voluntarily declared that she did nothing wrong.

    “Members of Congress have accused me of providing false information. I have not done anything wrong,” Lerner said. “I have not broken any laws. I have not violated IRS rules and regulations and I have not provided false information to this committee.”

    She opened the door. It’s entirely appropriate to ask her to elaborate on her statement, to go into detail about matters she already raised.

    And let’s remember that she’s on indefinite vacation at the moment. Not only has not a single person faced any disciplinary action in the IRS mess, several key figures have been promoted. That shows how the Obama administration really feels about what they did, not any self-serving BS statements of how the actions were outrageous and inexcusable and unacceptable or whatever it was Obama said.

    Like or Dislike: Thumb up 2 Thumb down 14

  9. anjin-san says:

    @ Doug

    As the faux “scandals” continue to fizzle out, “Bazinga” seems very appropriate…

    Like or Dislike: Thumb up 4 Thumb down 0

  10. 11B40 says:

    Greetings:

    That dreaded “contempt of Congress” finding, like the one US Attorney General Eric “My People” Holder earned a while back ??? Oh, noes !!!

    Regrettably, the Obama Administration seems to have worked through that in its inimitable progressive, move on way.

    Like or Dislike: Thumb up 0 Thumb down 10

  11. Jenos Idanian says:

    Oh, that’s right, I forgot. The law doesn’t apply when it’s being enforced by Republicans and might hurt Democrats. How did I forget that rule?

    Poorly-rated. Helpful or Unhelpful: Thumb up 1 Thumb down 16

  12. al-Ameda says:

    @Jenos Idanian:

    That shows how the Obama administration really feels about what they did, not any self-serving BS statements of how the actions were outrageous and inexcusable and unacceptable or whatever it was Obama said.

    Lois Lerner is an official of the Obama Administration?

    Like or Dislike: Thumb up 13 Thumb down 1

  13. anjin-san says:

    @ Jenos Whinian

    Do you need a hankie?

    Like or Dislike: Thumb up 13 Thumb down 0

  14. Jenos Idanian says:

    @al-Ameda: “The Obama administration” is shorthand for the Executive Branch, a part of which is the Treasury Department. There a several people personally appointed by Obama in Lerner’s chain of command. If Obama wanted this mess taken seriously, then we’d see some signs of it. Instead, at least one key person has been promoted.

    Personnel is policy.

    By the way, Doug, we just had Day 5 of the Zimmerman trial, and you haven’t commented on it since before the trial began. Anything yet attract your interest?

    For those who are actually interested in the case, Legal Insurrection has been doing superb summaries and commentaries on each day. So far, it seems like the prosecution and the defense are in a competition to see who can best exonerate Zimmerman.

    Like or Dislike: Thumb up 0 Thumb down 14

  15. Jenos Idanian says:

    @anjin-san: Do you need a hankie?

    No, thanks. You can keep it. You need to clean up after those rhetorical Lewinskys you’ve given to Obama and his minions.

    Poorly-rated. Helpful or Unhelpful: Thumb up 0 Thumb down 16

  16. rudderpedals says:

    So you’re the chairman, whaddaya gonna do? You can’t make a songbird sing. Take it to the floor of the House and get an order to the Sergeant at Arms to drag her off to lockup?

    Like or Dislike: Thumb up 3 Thumb down 0

  17. Jenos Idanian says:

    @rudderpedals: So you’re the chairman, whaddaya gonna do? You can’t make a songbird sing.

    Oh contraire, you certainly can. It’s been done plenty of times before.

    Step one: ask her to elaborate on her opening statement that she made of her own volition, before she invoked the 5th.

    Step two: when she refuses, grant her immunity, nullifying her 5th Amendment rights (as she would be free from the danger of prosecution), and ask her again. If she refuses, then hold her in contempt. If she lies, nail her for perjury.

    Like or Dislike: Thumb up 1 Thumb down 15

  18. anjin-san says:

    @ Jenos

    So you are going to follow Drew and start obsessing about Obama and blow jobs?

    At least Drew can fall back on the fact that he is a serious guy out there in the real world. He can get away with a certain amount of self inflicted humiliation.

    You? Not so much…

    Like or Dislike: Thumb up 5 Thumb down 0

  19. stonetools says:

    I think that after having her take the 5th a lot, the committee will offer immunity. I’m betting they won’t get too much from her, though .
    That won’t stop the hearings, though. The Republicans won’t let go of this no matter what.

    Like or Dislike: Thumb up 0 Thumb down 0

  20. rudderpedals says:

    @Jenos Idanian:@stonetools:

    She hasn’t been offered immunity. Until she is it’s her vs the House’s ability to use self-help to compel compliance with its creative understanding of civil rights. Where the equities lie at this point is clear.

    Like or Dislike: Thumb up 4 Thumb down 0

  21. OzarkHillbilly says:

    In terms of actually accomplishing anything, it will be mostly a waste of time.

    When has the GOP accomplished anything else?

    Like or Dislike: Thumb up 2 Thumb down 1

  22. superdestroyer says:

    Who cares? The Constitution gives Congress two ways to effect the IRS: either cuts its budget or change the laws that created and regulate the IRS. However, since the government has not passed a budget for five years and since there is no way any law changing the IRS is going to get through the Democrat controlled Senate, there is no way that the Republicans in the House can to anything to the IRS.

    Like or Dislike: Thumb up 1 Thumb down 5

  23. Jenos Idanian says:

    @rudderpedals: You’re correct. My statement was answering you as to how to get Lerner to talk. I have no clue whether or not that’s what the Committee will do, but it seems like a reasonable way to get her to tell the truth.

    Of course, that’s not what the Democrats want — they want this to just go away.

    Coincidentally, that’s the theme of a lot of the commenters here, too. Funny, that…

    Like or Dislike: Thumb up 1 Thumb down 4

  24. MarkedMan says:

    This is Republican governance. Plus 38 votes to repeal Obamacare. Plus inability to pass a bill of any significance with even a Republican majority, much less get it out into the real world. This is why you never, ever pull the lever for a republican even if you truly feel that your guy is “one of the good ones”

    Like or Dislike: Thumb up 6 Thumb down 1

  25. HarvardLaw92 says:

    In terms of actually accomplishing anything, it will be mostly a waste of time.

    Which, of course, pretty accurately sums up the committee in general under Issa’s chairmanship. He couldn’t care less about oversight. He wants ammunition …

    Like or Dislike: Thumb up 12 Thumb down 1

  26. HarvardLaw92 says:

    @Jenos Idanian:

    Step two: when she refuses, grant her immunity, nullifying her 5th Amendment rights (as she would be free from the danger of prosecution), and ask her again. If she refuses, then hold her in contempt. If she lies, nail her for perjury.

    You do grasp that a member of Congress doesn’t have the power to immunize anybody against federal prosecution, correct? For that, you need DOJ.

    Why do people keep thinking that Congress has any enforcement power with regard to the laws?

    Like or Dislike: Thumb up 14 Thumb down 0

  27. Bob @ Youngstown says:

    @Jenos Idanian:
    Are you concluding that she waived her rights because she’s on vacation, or that others haven’t been disciplined, or that others have been promoted (??), or that Obama is the President.

    If you want to make a legal argument do so, but stay on topic and spare us your transferred anger!

    Like or Dislike: Thumb up 11 Thumb down 0

  28. Bob @ Youngstown says:

    So I took the hour or so to watch the Oversight Committee meeting this morning, and while I disagree with the decision that was ultimately made, I was more appalled by the behavior of the Chairman.
    1) The Chair prevented a member from speaking on the Norton amendment. As the member began to request recognition, the Chair ignored then talked over the member. In all fairness, you need to see the video.
    2) The Chair wrote an email to Cummings to NOT share the committee counsel’s opinion with “his” (Cummings’) members of the committee.

    This is not the way a statesman, or even a fair minded person chairs a committee.

    Like or Dislike: Thumb up 12 Thumb down 0

  29. Buffalo Rude says:

    @Jenos Idanian: You’re adorable. Really, I mean that.

    Like or Dislike: Thumb up 6 Thumb down 0

  30. Jenos Idanian says:

    @Bob @ Youngstown: I said it already, and even quoted Lerner’s opening statement. She made some very solid assertions, and since she chose to bring up those points, the committee should have the right to compel her to elaborate.

    As far as the immunity issue.. ever heard of this guy named Oliver North? And this little thing called the Iran-Contra hearings? Congress (run by Democrats at the time) granted him immunity from prosecution, and that totally borked up his later trial.

    Or, more recently, the investigation into the Bush administration’s firing of US attorneys. Congress (again, led by Democrats) granted Monica Goodling immunity to compel her to testify on the matter.

    But again, I forgot — the laws are different when Republicans are in charge. What’s legal for Democrats is bad when Republicans try to do the same thing.

    Like or Dislike: Thumb up 2 Thumb down 10

  31. rudderpedals says:

    @Jenos Idanian: We’re both on the same page on the need for immunization but the chairman takes the position that immunity is moot because it was waived. The short youtube clip overturns the cw, the dem advocating for testimony and some kind of immunity (but how that grant happens without DOJ buy in I’m not so sure…) and chairman Issa is intent on forcing this into some kind of contempt situation.

    Link to the youtube clip on http://www.theatlanticwire.com/national/2013/06/irs-lois-lerner-plead-the-fifth/66703/

    Like or Dislike: Thumb up 0 Thumb down 0

  32. Jenos Idanian says:

    @rudderpedals: Issa might be doing that as a negotiating tactic — a little one-man “good cop, bad cop” move.

    Or, not. Again, I don’t have inside information.

    Like or Dislike: Thumb up 1 Thumb down 3

  33. RAOUL says:

    I have only one question, how much nutiness is DG willing to put up with before totally disassociation himself from the GOP (we all know he is “independent”)- of course there are issues he disagrees with on the Dem side-but anything this extreme? Over and over again?

    Like or Dislike: Thumb up 0 Thumb down 0

  34. HarvardLaw92 says:

    @Jenos Idanian:

    Congress (run by Democrats at the time) granted him immunity from prosecution, and that totally borked up his later trial.

    Which brings the problem into specific relief. Had he actually had immunity, there would have been no criminal trial. What Congress managed to do was pass a statute ostensibly giving committees the power to issue immunity grants that blatantly violates separation of powers and, in the case of North, compelled North to tender testimony to a congressional committee under the illusion of immunity. The DC Circuit threw out the inclusion of that evidence in the appeal of his subsequent criminal trial as being violatory of his 5th Amendment right against self-incrimination.

    Yet again, for the learning impaired, if one actually wishes to avoid prosecution, he/she had better get that grant of immunity from a US Attorney, and it had better be transactional.

    Like or Dislike: Thumb up 8 Thumb down 0

  35. PJ says:

    @Jenos Idanian:

    Of course, that’s not what the Democrats want — they want this to just go away.

    They want this to just go away? Don’t be so sure of that.

    The top Democrat on the House Ways and Means Committee is calling into question the very report that set off the IRS scandal last month.

    In a sharply worded letter sent Wednesday to J. Russell George, the Inspector General for Tax Administration, Rep. Sander Levin (D-MI), the ranking member of the House Ways and Means Committee, wrote that there “is increasing evidence that the May 14, 2013 audit was fundamentally flawed and that your handling of it has failed to meet the necessary test of objectivity and forthrightness.”

    This is turning out to be a perfect example of Issa’s politicizing.

    Like or Dislike: Thumb up 5 Thumb down 0

  36. anjin-san says:

    @ PJ

    They want this to just go away? Don’t be so sure of that.

    I had the same thought RE: Issa – keep talking Bubba…

    Like or Dislike: Thumb up 4 Thumb down 0

  37. Bob @ Youngstown says:

    Back to the topic of Lois Lerner and the committee’s determination that she waived her 5th Amendment rights.

    I agree with Doug on this. I would be suprised that the DOJ would prosecute, and I would be even more suprised that her plea of not-guilty (opening statement) would be deemed forfeiting her 5th rights.

    As to the Committee granting immunity and all the questionable authority around that, what value would that be to her? If she is convinced that she did not knowingly commit any crime, what would she be held immune from? Prosecution for inconsistant or inept management?

    After watching Issa and his committee now several times, I’ve come to the conclusion that there are several members that are simply bullies. They don’t appear to be interested in investigating or understanding what happened, how it happened, and how it could be avoided in the future.

    Like or Dislike: Thumb up 6 Thumb down 0

  38. If Lerner is challenged to reassert her 5th Amendment rights she will almost certainly be fired, which is what she deserves for misleading and refusing to respond to Congress and abusing power, whereas if she is allowed to quietly recede she most likely would be subjected to lesser disciplinary action. So, I am glad the House will continue to press her. Also, I would guess she is answering questions in the context of the personnel action the IRS has initiated against her that she refuses to answer before Congress. Lerner is weaving a very tangled web and deserves no sympathy. You can’t have it both ways. The hardball play is justified.

    Like or Dislike: Thumb up 1 Thumb down 8

  39. Rick Almeida says:

    @Jenos Idanian:

    How about you present and discuss the relevant statutes and case law, and take it from there.

    Like or Dislike: Thumb up 5 Thumb down 0

  40. Bob @ Youngstown says:

    It looks like the only way out of this mess is a special prosecutor.

    There is so much distrust (and often times warranted) of Congress, DOJ, administration, Inspector General and the media.

    Like or Dislike: Thumb up 0 Thumb down 0

  41. OzarkHillbilly says:

    @Bob @ Youngstown:

    It looks like the only way out of this mess is a special prosecutor.

    Absent any evidence that there was a crime of any kind? Ken Starr went after Clinton for years and everything he investigated fell apart until he came across a soiled dress.

    No thanx.

    Like or Dislike: Thumb up 6 Thumb down 0

  42. gVOR08 says:

    If push comes to shove and someone is charged with Contempt of Congress, is the utter contemptibility of congress and Darrel Issa a defense?

    Like or Dislike: Thumb up 2 Thumb down 0

  43. Bob @ Youngstown says:

    @Ozarkhillbilly,
    I understand your reluctance.

    I’m just pointing out that as long as the “left” and “right” continue to scream ‘LIAR’ at each other there will be a continued distrust of the IRS. No end in sight, just more partisan anger, resentment and gridlock.

    This is the stuff that anarchist’s just love, and they will continue to fuel that fire.

    Like or Dislike: Thumb up 0 Thumb down 0

  44. Dazedandconfused says:

    @HarvardLaw92:

    You do grasp that a member of Congress doesn’t have the power to immunize anybody against federal prosecution, correct? For that, you need DOJ.

    Aye, and verily does this not serve to lure Issa’s Black AG once more into harpoon range, matey? The Holder tasks him; The Holder heaps him; Issa sees in him outrageous strength, with an inscrutable malice sinewing it. That inscrutable thing is chiefly what Issa hates; and be the Black AG agent, or be the Black AG principal, Issa will wreak that hate upon him.

    Like or Dislike: Thumb up 3 Thumb down 0