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Wednesday, May 22, 2013

By Offering Statement Proclaiming Innocence In IRS Scandal, Lois Lerner Lost Right To Invoke 5th Amendment

By Susan Duclos

Lois Lerner,  the head of the exempt organizations division of the IRS, attempted to have her cake and eat it too, so to speak, by offering a statement proclaiming her innocence in any wrongdoing, before stating that she was invoking her fifth amendment right.

By doing so, she lost her right to invoke the fifth amendment, according to House Oversight and Government Reform Committee Chairman Darrell Issa, who says because of that Lerner will be hauled back to appear before the committee again.

Video of Lerner's statement below:

Via Politico:

Issa dismissed her from the committee room once it became clear she wouldn’t answer questions.
Lerner’s decision to speak at all immediately triggered a dust-up among lawmakers who were confused about whether she gave up her Fifth Amendment protections when she made an opening statement.

Rep. Trey Gowdy (R-S.C.), a former federal prosecutor, said Lerner lost her rights the minute she started proclaiming her innocence, and that lawmakers therefore were entitled to question her. But Ranking Democrat Elijah Cummings of Maryland said hearing rules were not like those of a courtroom.

During the incident, Issa did not flat-out say whether or not Lerner had indeed waived her rights but instead tried to coax her into staying by offering to narrow the scope of questions.

By the afternoon, Issa was taking a harder stand.

“The precedents are clear that this is not something you can turn on and turn off,” he told POLITICO. “She made testimony after she was sworn in, asserted her innocence in a number of areas, even answered questions asserting that a document was true … So she gave partial testimony and then tried to revoke that.”

He said he was not expecting that.

“I understand from her counsel that there was a plan to assert her Fifth Amendment rights,” he continued. “She went ahead and made a statement, so counsel let her effectively under the precedent, waive — so we now have someone who no longer has that ability.”

Had she invoked the fifth amendment from the very start, the legality of it would not be an issue, but by trying to publicly declare her innocence of wrongdoing before the committee, she in effect, started testifying without invoking her fifth amendment rights, then invoked so the committee could not cross-examiner her..

It should be interesting to see what legal experts have to say about this.

[Update] The Volokh Conspiracy with some legal precedent:

I don’t think the answer is clear, as there are no cases quite like it. The general rule is that a witness can’t testify about her version of the facts and then invoke the Fifth Amendment when facing cross examination. Here’s what the Court said in Mitchell v. United States, 526 U.S. 314, 321(1999):
It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. See Rogers v. United States, 340 U.S. 367, 373 (1951). The privilege is waived for the matters to which the witness testifies, and the scope of the “waiver is determined by the scope of relevant cross-examination,” Brown v. United States, 356 U.S. 148, 154—155 (1958). “The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry,” id., at 155. Nice questions will arise, of course, about the extent of the initial testimony and whether the ensuing questions are comprehended within its scope, but for now it suffices to note the general rule.
The tricky part is how to characterize Lerner’s testimony before she invoked the Fifth Amendment. On one hand, if you say that Lerner merely expressed her view that she is innocent but did not actually testify as to any facts, then you could say she did not waive her rights with her statement. Questioning would not be about the details of facts she already testified to, but rather would require her testimony on a subject she declined to testify about. On the other hand, if you say that Lerner’s reciting the allegations and then denying them effectively testified about the allegations, then you could say that she did testify and did waive her rights. From that perspective, she already testified about “the subject” by saying that she did not violate any IRS rules or submit false testimony, and further questioning would be about the details of why she thinks that.

Full Wake up America coverage on the IRS scandal can be found here.