Did Lois Lerner Waive Her Fifth Amendment Rights?

Lois Lerner

It appears that Lois Lerner, the embattled director of the IRS’s Tax-Exempt Division, may have put herself in a bit of a pickle. Despite stating her intention to invoke her Fifth Amendment right in advance of the hearing, Lerner gave an opening statement in which she clearly stated that she had done nothing wrong.

“[M]embers of this committee have accused me of providing false information when I responded to questions about the IRS processing of applications for tax exemption,” Lerner told the House Oversight and Government Reform Committee on Wednesday. “I have not done anything wrong. I have not broken any laws. I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee.”

“And while I would very much like to answer the committee’s questions today, I’ve been advised by my counsel to assert my Constitutional right not to testify or answer questions related to the subject matter of this hearing,” she added. “After very careful consideration, I’ve decided to follow my counsel’s advice, and not testify or answer any of the questions today. Because I’m asserting my right not to testify, I know that some people will assume that I’ve done something wrong. I have not.”

Chairman Darrell Issa (R-CA) believes that her opening statement, given before she invoked the Fifth Amendment, was tantamount to her waiving her right:

House Oversight and Government Reform Committee Chairman Darrell Issa said embattled IRS official Lois Lerner waived her Fifth Amendment rights and will be hauled back to appear before his panel again.

The California Republican said Lerner’s Fifth Amendment right to avoid self-incrimination was voided when she gave an opening statement this morning denying any wrongdoing and professing pride in her government service.

“When I asked her her questions from the very beginning, I did so so she could assert her rights prior to any statement,” Issa told POLITICO. “She chose not to do so — so she waived.”
“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.”

Chairman Issa warned Lerner that her that by claiming innocence in her opening statement and authenticating answers she gave to the Treasury Department’s Inspector General, who investigated the IRS’s targeting of these groups, that she “effectively waived [her] right,” and advised her to confer with her lawyers.

Lerner briefly spoke to her counsel, and then told Issa, “I will not answer any questions or testify about the subject matter of this committee’s meeting.” Lerner was then dismissed, but advised that she could be recalled at a later time. Issa did also note that immunity was a possibility for Lerner, which would allow her to speak openly without the fear of prosecution.

But Issa appears to be wading into new territory. Orin Kerr, a constitutional law expert who contributes at the well-respected Volokh Conspiracy, wrote yesterday that “there are no cases quite like [this].”

“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,” wrote Kerr, citing the Supreme Court’s decision in Mitchell v. United States. “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.”

“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,” he added. “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.”

If Chairman Issa bring Lerner back before the committee, based on the belief that Lerner waived her rights, and she doesn’t answer questions, she could be charged with contempt of Congress — much like Attorney General Eric Holder was in 2012 after he refused to deliver documents to the House Oversight Committee pertaining to Operation Fast and Furious.

Because this is so murky, it’s unlikely that Lerner testifies without immunity. In fact, that’s probably the best route to take. Simply put, the very basis of conservative and libertarian views is that the government cannot be trusted. It’s best that Chairman Issa and Republicans on the committee err on the side of caution and get this right.

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