Lois Lerner Will Testify If Granted Immunity

Not surprisingly, Lois Lerner's attorney is saying his client will only testify under a grant of immunity.

Lois Lerner

Politico is reporting that the attorney for Lois Lerner, the currently suspended IRS employee who asserted her Fifth Amendment rights last month only to have the House Government Oversight Committee claim that she had waived those rights, is saying that his client will only testify before the committee if granted immunity:

Embattled IRS official Lois Lerner will not testify before the House Oversight and Government Reform Committee unless she’s given immunity from prosecution, her lawyer told POLITICO Tuesday.

“They can obtain her testimony tomorrow by doing it the easy way … immunity,” William W. Taylor III said in a phone interview. “That’s the way to resolve all of this.”

The comments reflect the hard-line approach Lerner, the former head of the IRS division that scrutinized conservative groups, and her legal team are taking in defending her role in the agency’s scandal.

Taylor, a founding partner of Zuckerman Spaeder LLP, is even shrugging off the possibility that the full House might vote to hold Lerner in contempt.

“None of this matters,” he said. “I mean, nobody likes to be held in contempt of Congress, of course, but the real question is one that we’re fairly confident about, and I don’t think any district judge in the country would hold that she waived.”

(…)

If Lerner is held in contempt, Taylor notes that a federal judge will have the final say about whether she waived her constitutional protection. That’s because criminal contempt charges go to the U.S. attorney for the District of Columbia for potential prosecution.

The Oversight committee, chaired by Rep. Darrell Issa (R-Calif.), could initiate civil proceedings against Lerner on its own initiative.

But such an option would delay Lerner’s testimony for months, if not longer, lessening her value to the panel’s IRS probe.

Even if Lerner is found in the wrong, she’ll simply testify and it won’t be a huge deal, Taylor says.

“If the court finds that she didn’t waive, then it’s over, and if the court finds that she did and orders her to testify, then she goes to testify,” Taylor said, later, adding that there is “no danger under any circumstances of her going to jail.”

At least one former Congressional legal aide agrees with Taylor:

Robert Walker, former chief counsel for both the House and Senate ethics committees, agreed with Taylor’s assertion that Lerner didn’t waive her rights.

“The question of whether in this setting, in a congressional hearing where the witness has been forced to testify, I think the weight of the authorities indicates there is some leeway for the witness to make some statement — some very general statement, provided it doesn’t get into specific facts — there is some leeway for a witness to do that before they can be said to have waived their Fifth Amendment privilege,” Walker said.

In a 1958 Supreme Court case on the Fifth Amendment, the high court noted that the defendant “relies on decisions holding that witnesses in civil proceedings and before congressional committees do not waive the [Fifth Amendment] privilege by denials and partial disclosures, but only by testimony that itself incriminates.”

And witnesses in previous hearings — for instance, in hearings on organized crime in the 1950s — have issued broad statements denying any wrongdoing, while then asserting their Fifth Amendment rights, a move later upheld by a federal court, according to legal records and press reports.

As there are with many legal questions, there are differing opinions on whether or not Lerner may have waived her rights and what her ultimate legal risks might actually be if she refuses to cooperate with the committee without a grant of immunity. However, I think Taylor has the better here. More importantly, as I’ve said repeatedly since this controversy started, the committee to resolve this matter easily by granting Lerner immunity so that she would be effectively compelled to testify. Such immunity need not be of the type that would grant her immunity from all prosecution and, indeed, it would be unwise to grant that type of full immunity for the sole purpose of testifying at one committee hearing. They don’t need to go that far, however. The committee could grant a form of immunity known as “transactional use immunity,” which essentially means that nothing she testifies to before the committee could be used against her in a future criminal investigation or prosecution. There would be no bar, however, to a prosecution based on independently acquired facts as long as there is sufficient evidence to support such a prosecution. It’s true that such a prosecution would not be easy, something the Independent Counsel who prosecuted Oliver North discovered when North’s convictions were overturned because the Court could not determine that the evidence used at trial was acquired independent of North’s immunized testimony. Nonetheless, if Congress truly wants Lerner’s testimony

Ed Morrissey comments:

No prosecutor would make an immunity offer without first getting a proffer on what the witness has to disclose. Few witnesses or their attorneys would demand immunity without having something to tell, either, and without that “something” pointing at bigger fish to fry than themselves.

I tend to disagree. As I noted when this all started, the fact that Lerner was invoking the Fifth Amendment doesn’t necessarily mean that she committed some kind of criminal wrongdoing, or that what she knows would be evidence of criminal wrongdoing by others. Instead, it was a decision by her and her attorney to protect her rights by refusing to subject her to the wide open questioning of a Congressional Committee without the protection of a grant of immunity. We’ve seen many cases in the recent past where people who turned out to be completely innocent have been prosecuted because of things they said, or based on flimsy evidence. Indeed, back in 1956, the Supreme Court recognized that the Fifth Amendment existed, in large part, to protect people in that very situation:

At the outset, we must condemn the practice of imputing a sinister meaning to the exercise of a person’s constitutional right under the Fifth Amendment. The right of an accused person to refuse to testify, which had been in England merely a rule of evidence, was so important to our forefathers that they raised it to the dignity of a constitutional enactment, and it has been recognized as “one of the most valuable prerogatives of the citizen.” Brown v. Walker, 161 U.S. 591, 610. We have reaffirmed our faith in this principle recently in Quinn v. United States, 349 U.S. 155. In Ullmann v. United States, 350 U.S. 422, decided last month, we scored the assumption that those who claim this privilege are either criminals or perjurers. The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury. As we pointed out in Ullmann, a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances. See Griswold, The Fifth Amendment Today (1955).

Lerner’s attorney did the right thing in advising her to invoke the Fifth Amendment last month. He’s doing the right thing in telling the committee that only a grant of immunity will get her voluntary testimony today. The ball is now in the committee’s court.

FILED UNDER: Congress, Law and the Courts, US Politics, ,
Doug Mataconis
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. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. rudderpedals says:

    ITYM the committee could grant narrower use immunity. Transactional is broad immunity. A mnemonic trick is to mentally link the word transaction with the civ pro compulsory counterclaim requirement (“arising out of or in connection with the same transaction”) and you’ll always be right,

  2. Woody says:

    I believe your reasoning to be sound, Mr Mataconis, but we live in an era where citizens unfortunate enough to be “ordinary” who actually assert their Constitutional rights* are undoubtably guilty and deserve harsh punishment after a sensational trial providing high Nielsen ratings.

    *Does not apply to the Transcendent Second, which even the ordinary may claim at will.

  3. al-Ameda says:

    I would think that any sane person would decline to testify before any House Committee chaired by Representative Darrell Issa.

  4. legion says:

    No prosecutor would make an immunity offer without first getting a proffer on what the witness has to disclose. Few witnesses or their attorneys would demand immunity without having something to tell

    Even if Ed’s correct, bear in mind that this process is _not_ being run by a prosecutor – it’s being run by a thug and bully who’s already demonstrated that these proceedings are biased – even fixed – to his own political ends. If he grants her immunity, it’s only because he believes her testimony will hurt Obama, but I don’t see any judge forcing her testimony here.

  5. michael reynolds says:

    I imagine they’ll grant immunity now that the whole thing has stalled out and Issa looks ridiculous. It’s likely his best choice.

  6. @rudderpedals:

    Yea that was my mistake on getting the terms flipped. I’ll fix that.

  7. stonetools says:

    This isn’t a legal question. It’s a political question:

    1. Does Issa (and the Republicans) gain more by not granting immunity and speculating darkly about possible high crimes that Ms. Lerner is concealing by taking the Fifth?

    2. Or do they grant immunity and find out that Ms. Lerner is not concealing very much and nothing that would feed the Obama-is-conspiring-to -use-the-IRS-to undermine-the-Tea Party narrative?

    I think Issa will go with (1) for the time being.

  8. Sam Malone says:

    Given the performance of Issa to date…you would have to be pretty f’ing stupid to go in front of his commitee without immunity.

  9. Paul L. says:

    Does immunity apply to the “teabaggers” suing her in civil court.
    Is she considered to have immunity for her actions and the Government have to defend her and paid any judgement against her in civil court?

    Give her immunity.

    Then all the groups she targeted can start lining up and filing lawsuits against her in civil court. She’ll never recover. She’ll go to her grave broken and poor.

    I’m sure there are any number of conservative lawyers who would take such a case pro bono for the opportunity to make an example of her.

    I suspect the answer is yes from Doug and other Democrat/progressive defenders of the IRS.

    I hope Zimmerman takes the 5th to watch the Democrats/progressives Lerner defneders say It proves he is guilt.

  10. wr says:

    @Paul L.: That’s great. I can’t wait for these lawsuits, especially when the plaintiffs have to explain what harm they suffered. “Um, I had to answer some questions before I was granted tax-free status. And I was forced to endure the agony of defacto tax-free status during the long period my application was under consideration. And, um, Obama is black.”

    Good luck with that one.

  11. Paul L. says:

    @wr:
    Bet you defend all malicious prosecutions like EPA agent Keith Phillips

    Come out the EPA agent did no harm..

    But maybe you are right.

    This is an isolated situation because it is rare — freakishly rare, struck-twice-by-lightening rare — for federal law enforcement agents or federal prosecutors to be held accountable in any meaningful way for even serious misconduct against the Americans they accuse and pursue.

  12. al-Ameda says:

    @Paul L.:

    I hope Zimmerman takes the 5th to watch the Democrats/progressives Lerner defneders say It proves he is guilt.

    One thing we do know – if Zimmerman had not been stalking Martin, and if he had listened to police admonitions to back off – this tragedy would not have happened. It’s interesting to watch how conservatives have become an “OJ Jury” on behalf of Zimmerman.

  13. Barry says:

    @Paul L.: “I hope Zimmerman takes the 5th to watch the Democrats/progressives Lerner defneders say It proves he is guilt. ”

    We won’t, because we don’t work that way.

  14. anjin-san says:

    @ al-Ameda

    It’s interesting to watch how conservatives have become an “OJ Jury” on behalf of Zimmerman.

    It’s very interesting. How did Zimmermann, a rather creepy guy/wannabe cop, the architect of this terrible tragedy, become a sympathetic character in their eyes? How did Martin, a kid going about his lawful business who would be alive today absent Zimmermann’s incredible idiocy, become the bad guy?

    Well, it’s just one more black person shot dead in America. Nothing for the right to get upset about.

  15. Paul L. says:

    @anjin-san:

    How did Martin, a kid going about his lawful business who would be alive today

    @al-Ameda:

    if Zimmerman had not been stalking Martin, and if he had listened to police admonitions to back off

    Can someone explain why is it illegal to follow someone in public going about his lawful business?

  16. anjin-san says:

    @ Paul L.

    Can someone explain why is it illegal to follow someone in public going about his lawful business?

    Can you show us where anyone said it is?

    Illegal, no. Creepy? Stupid? Dangerous? Very.

  17. Sam Malone says:

    I’m not an attorney…but it seems to me harassment, provocation, and stalking all have legal implications. Not complying with officers (dispatchers) instructions withstanding.

  18. wr says:

    @Paul L.: In other words, even you can’t come up with a single bit of harm committed against these Tea crooks, most of whom were seeking tax exempt status for electioneering activities, and you’re reduced to desperately trying to change the subject.

    But yes, I eagerly await the lawsuit in which Lois Lerner is sued by Tea morons because of something reputedly done to someone else by an agent of a different agency. Tell me, do you think the lawyer would be disbarred before or after shelling out an obscene penalty for harassment?

  19. MM says:

    @anjin-san:

    It’s very interesting. How did Zimmermann, a rather creepy guy/wannabe cop, the architect of this terrible tragedy, become a sympathetic character in their eyes?

    In certain right-wing circles, it is a Known Fact that every city is practically a warzone, most racism is perpetrated against white people and the black community is inches from rioting at any time. Look to the comments about what would have happened if Obama lost in 2008/2012, or the fake reluctance that we are about to have a civil war evident at places like HotAir. Heck, look at the passionate defense of Paula Deen.

    The other issue is that the gun debate has veered into a realm where anything that isn’t full throatedly pro gun is considered to be “gun grabbing”. Therefore, Zimmerman can’t be guilty, he can;t even be a creepy not-guilty player in a tragedy. he must be a hero, otherwise the “other side’s” criticism has at least a touch of merit.

  20. William Wilvgus says:

    @Paul L.: It’s extremely unlikely that Zimmerman will testify. He’d have nothing to gain and everything to lose.

  21. William Wilvgus says:

    @anjin-san: I believe it would be illegal if you were STALKING he person.

  22. William Wilvgus says:

    @Paul L.: Stalking. “the act of following prey stealthily”. In other words, following someone for iniquitous purposes.

  23. William Wilvgus says:

    @anjin-san: Depends on the reason for following. I believe Stalking’ is illegal.

  24. anjin-san says:

    @ William Wilvgus

    I believe stalking involves repeated instances of following someone.

  25. sam says:

    @wr:

    @Paul L.: That’s great. I can’t wait for these lawsuits, especially when the plaintiffs have to explain what harm they suffered.

    Or when the discovery process shows them to be political up to their red, white, and blue eyeballs.

  26. Jenos Idanian says:

    @al-Ameda: One thing we do know – if Zimmerman had not been stalking Martin, and if he had listened to police admonitions to back off – this tragedy would not have happened. It’s interesting to watch how conservatives have become an “OJ Jury” on behalf of Zimmerman.

    Boy, you just can’t resist talking about the Zimmerman case, can you? Too bad the authors here haven’t given us a Zimmerman posting since the trial began. Because if they did, you might know that persecution witnesses have testified that 1) Martin got to the back yard of the home where he was staying before choosing to go back and confront Zimmerman; 2) Martin racially profiled Zimmerman, calling him a “creepy-ass cracker;” and 3) Martin was on top of Martin, pounding the living hell out of Zimmerman.

    But back to the topic at hand… sorry, Issa can’t offer Lerner immunity. According to some of the fine commentariat here, only Democratic Congresses can offer immunity. Republican Congresses have no legitimacy, and all are a bunch of stinky boogerheads besides.

  27. al-Ameda says:

    @Jenos Idanian:

    Boy, you just can’t resist talking about the Zimmerman case, can you?

    Actually it was Paul L, who mentioned the Zimmerman trial:

    I hope Zimmerman takes the 5th to watch the Democrats/progressives Lerner defneders say It proves he is guilt.

    Look, if you want to be Zimmerman’s personal OJ Jury, be my guest. Zimmerman had a gun, profiled Martin as a criminal because Martin was Black, he stalked Martin, and eventually shot him. Sounds like manslaughter to me. Sounds like “innocence” to you.

  28. anjin-san says:

    3) Martin was on top of Martin, pounding the living hell out of Zimmerman.

    Hmmm. Chief Medical Examiner Dr. Valerie Rao, said Zimmermann’s injuries were “insignificant”, adding “They were not life-threatening injuries.” Not surprisingly, the right has responded to this by launching a smear campaign against Dr. Rao.

    Dr. Michael Baden, one the top forensic pathologists in the U.S., is on the record as saying Zimmermann’s injuries “appear superficial.”

    Dr. Marc Siegal, reporting for Fox comments, “There appears to be a growing body of evidence that George Zimmerman wasn’t badly hurt by Trayvon Martin.”

    But what is the opinion of these experts against our resident obsessed Zimmermann fanboy? The Daily Caller has already told him what he thinks.

    Additionally, the witness who used the expression “ground and pound” also said he could not say for certain that punches were being thrown.

  29. al-Ameda says:

    @anjin-san:

    Hmmm. Chief Medical Examiner Dr. Valerie Rao, said Zimmermann’s injuries were “insignificant”, adding “They were not life-threatening injuries.” Not surprisingly, the right has responded to this by launching a smear campaign against Dr. Rao.

    Yes, it’s clear that Dr. Valerie Rao, meant to say that Martin was “pounding the living hell out of Zimmerman.” I’m also pretty sure that when she said “They were not life-threatening injuries,” she meant to say, “Martin was Black, Zimmerman is innocent, let’s go home.”

  30. anjin-san says:

    2) Martin racially profiled Zimmerman, calling him a “creepy-ass cracker;”

    No one is shocked that you don’t know what racial profiling is.

    “Racial Profiling” refers to the discriminatory practice by law enforcement officials of targeting individuals for suspicion of crime based on the individual’s race, ethnicity, religion or national origin.

    Law enforcement agent includes a person acting in a policing capacity for public or private purposes.

    http://www.aclu.org/racial-justice/racial-profiling-definition

  31. Gromitt Gunn says:

    @Paul L.:

    Give her immunity.

    Then all the groups she targeted can start lining up and filing lawsuits against her in civil court. She’ll never recover. She’ll go to her grave broken and poor.

    I’m sure there are any number of conservative lawyers who would take such a case pro bono for the opportunity to make an example of her.

    Always awesome to see rightwingnuts reveal themselves as the sadistic bullies they are.

  32. Jenos Idanian says:

    @anjin-san: The comments by those doctors are irrelevant on two separate grounds. But I’ll wait until our hosts offer us a Zimmerman thread to go into detail as to why.

    I’m betting that won’t happen until the prosecution has a good day. And the way things are going, I’ll bet that we won’t have a Zimmerman thread until he’s acquitted and the riots start.

  33. anjin-san says:

    the riots start.

    Well naturally, thats what a… person such as yourself is hoping for.

    At any rate, you can go back under your rock for now, since of course you have not a shred of evidence that Zimmermann took a beating greater than what most of us saw in the school yard brawls of our younger days.

    So long, Sir Robin.

  34. Jenos Idanian says:

    @anjin-san: I’m not hoping for riots, you git. But only a fool would dismiss the possibility outright. The race-hustlers have invested a hell of a lot into demonizing Zimmerman. Hell, the New Black Panther Party put out a bounty on him, and Spike Lee tried to post Zimmerman’s home address on Twitter. (He put the wrong people’s address up, and I think they sued him, or threatened to.)

    But since you challenged me, the reports cited above are irrelevant on two grounds.

    1) The worthies quoted looked at the pictures after ZImmerman had been treated.

    2) The law of self-defense says nothing about actual injuries, just a reasonable belief of imminent danger of death or great bodily harm. By your reasoning, if a guy pulls a knife on me and I have a gun, I can’t shoot him until he stabs me first. And I don’t think even you are that stupid.

    But I could be wrong there. You just might be. You wanna prove me wrong?

    So there goes that red herring. Right down the toilet, along with the “Stand Your Ground” law, which both sides have agreed isn’t an issue at trial.

    Or we could just drop this now, and wait for an appropriate thread to discuss the matter.

  35. anjin-san says:

    1) The worthies quoted looked at the pictures after ZImmerman had been treated.

    After he had been treated? You mean after they wiped the blood of the scrapes on the back of Zimmermann’s head and put band aids on them? The little lacerations that required no further treatment? Yes, that was some beating he took. Reminds me of the fight Steve Smith got in back in 8th grade after gym class.

    And of course its impossible for an expert forensic pathologist to determine what happend from photos. But, through some magic, you are able to look at photos and you just know Zimmermann was beaten within an inch of his life – to the point where you carry on about the so called beating obsessively. Well, naturally you know far more than an expert does.

    But, now it looks like you are running away from your “pounding the living hell out of Zimmerman” and hiding behind “reasonable belief”. Well, it’s not hard to understand why you empathize so much with a person of Zimmermann’s caliber. Have a nice evening under your rock.

  36. wr says:

    @Jenos Idanian: “Or we could just drop this now, and wait for an appropriate thread to discuss the matter. ”

    Says the troll who has hijacked just about every thread here for the last six months to whine about the martyrdom of his favorite hero of the race wars, a wannabee loser with delusions of significance. Can’t think why Jenos identifies with this guy so strongly.

  37. Jenos Idanian says:

    @anjin-san: Such hatred and vitriol. Is that all natural, or did you get special training in it?

    Oh, and nice evasion on how you totally rewrote the self-defense laws to suit your purpose. Too bad you don’t have the legal authority to move those goalposts just so you can put your noose on that nasty little Hispanic/black mixed-race Zimmerman.

  38. anjin-san says:

    Such hatred and vitriol.

    Umm. Yea. I despise bigotry and ignorance. I can see why that could annoy you.

    your noose

    A lot of people have been lynched in the real world. Trivializing that is not really cool Please show where I advocated violence against Zimmermann. Failing that, you should consider admitting your are full of shit.

    nasty little Hispanic/black mixed-race

    Ah, so I am a bigot. That would explain my mixed race marriage. BTW, “hispanic” is not a race, it refers to a cultural link with Spain.

    you totally rewrote the self-defense laws

    Really? I did that? Where, exactly?

    Martin was on top of Martin, pounding the living hell out of Zimmerman.

    Look, you’ve said this what – about a thousand times now. Please show some proof of this horrific beating. The superficial injuries Zimmermann had? Not proof. Put up or shut up.

  39. Jenos Idanian says:

    @anjin-san: Lord, you’re so predictable. All anyone has to do is say “Zimmerman” and jump in, full-throated, splattering your ignorance and vitriol all over the place. And then, completely unaware of the irony, you blast that person for “thread-jacking.” If you were really concerned about that, you wouldn’t participate so voluminously in the digression, you’d just cite your objection.

    But as I’ve said repeatedly here (and you won’t seem to accept), I am willing to postpone any substantive discussions of the Zimmerman case until there’s a thread devoted to the topic. And, as I’ve also said repeatedly, as long as the case seems to be going so well for Zimmerman, I don’t expect any such thread to materialize here. Which is why I’m using Legal Insurrection for actual coverage of the trial.

    Now, please, lambaste me for 1) thread-jacking, and 2) not answering you while you perpetuate the thread-jacking. I enjoy how you’re oblivious to the irony.

  40. anjin-san says:

    splattering your ignorance

    Please show where I have said something on this thread that is demonstrably false.

    And then, completely unaware of the irony, you blast that person for “thread-jacking.”

    Please show where I have mentioned thread-jacking on this thread.

    Oh wait, you can’t. Nor can you respond to the points I raised. Looks like it’s “shut up” for you.