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A Person of Privilege? Lois Lerner was too clever by half.
National Review Online ^ | May 23, 2013 | Fred Thompson

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.


TOPICS: Crime/Corruption; Government; News/Current Events
KEYWORDS: abuseofpower; bhoirs; irs; irsteaparty; lerner; loislerner
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1 posted on 05/23/2013 7:22:56 AM PDT by billorites
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To: billorites

“I don’t recall.”


2 posted on 05/23/2013 7:24:55 AM PDT by E. Pluribus Unum ("Somebody has to be courageous enough to stand up to the bullies." --Dr. Ben Carson)
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To: billorites

She has the Chicago mob and the IRS (Yeah. I know. Redundant.) backing her up. She’ll do fine. Probably get promoted again.


3 posted on 05/23/2013 7:26:11 AM PDT by FlingWingFlyer (If you think ObamaCare is a train wreck, wait until you see the amnesty bill.)
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To: billorites

Has F. Lee Levin weighed in on this yet?


4 posted on 05/23/2013 7:28:22 AM PDT by COBOL2Java (Fighting Obama without Boehner & McConnell is like going deer hunting without your accordion)
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To: billorites

I still think that this was advice from her counsel that morning as a way to request immunity from prosecution before further testimony.

She did it rather awkwardly, but Issa mentioned ‘immunity’ so I believe that is ‘in the works’.


5 posted on 05/23/2013 7:28:23 AM PDT by UCANSEE2 (The monsters are due on Maple Street)
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To: billorites

Is Lois Lerner the designated fall guy? Did her “expert counsel” advise her to take the course she took in the questioning in order to take the Fifth off the table? She said what she said as if it were thought out and planned. I doubt she understands or did the planning, though.


6 posted on 05/23/2013 7:28:47 AM PDT by arthurus (Read Hazlitt's Economics In One Lesson ONLINE http://steshaw.org/econohttp://www.fee.org/library/det)
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To: UCANSEE2

In accordance with Executive Order 10491. Any Federal Employee who invokes the 5th Amendment before congress. They are terminated.


7 posted on 05/23/2013 7:31:56 AM PDT by massgopguy (I owe everything to George Bailey)
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To: arthurus

I watched the video and it seemed to me that Issa’s was reading from a prepared/scripted sheet, everything from asking her to confirm the IRB to advising her to speak with counsil and excusing her for recess. It could be that Issa was prepared with multiple responses depending on how she reacted to his “trap”. Watch the video and let me know what you think.


8 posted on 05/23/2013 7:33:01 AM PDT by BigDaddyTX (Don't Mex with Texas)
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To: E. Pluribus Unum

Haul her ass back into the hearing room. Advise her that she has waived her 5th amendment rights. If she refuses to testify, find her in contempt of Congress and put her in a nice jail cell until she changes her mind.

That will send a message to everyone involved.


9 posted on 05/23/2013 7:33:50 AM PDT by Wordkraft (Remember who the Collaborators are.)
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To: UCANSEE2

In accordance with Executive Order 10491. Any Federal Employee who invokes the 5th Amendment before congress. They are terminated.


10 posted on 05/23/2013 7:34:21 AM PDT by massgopguy (I owe everything to George Bailey)
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To: UCANSEE2

In accordance with Executive Order 10491. Any Federal Employee who invokes the 5th Amendment before congress. They are terminated.


11 posted on 05/23/2013 7:34:36 AM PDT by massgopguy (I owe everything to George Bailey)
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To: Wordkraft

If only there was a way to make that jail cell one in GITMO.....


12 posted on 05/23/2013 7:37:29 AM PDT by kjam22 (my newest music video:http://www.youtube.com/watch?v=l7gNI9bWO3s)
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To: billorites

This reminds me of the “Untouchables” or “Hogans Heros”. Nobody knows nuttin’ and therefore nobody can be held accountable.


13 posted on 05/23/2013 7:37:59 AM PDT by teletech (Say NO to RINOS!)
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To: teletech

When they start handing out those cards that say “Go directly to Jail. Do not pass GO”.... that’s when some memories are going to be refreshed.


14 posted on 05/23/2013 7:39:27 AM PDT by kjam22 (my newest music video:http://www.youtube.com/watch?v=l7gNI9bWO3s)
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To: teletech

When they start handing out those cards that say “Go directly to Jail. Do not pass GO”.... that’s when some memories are going to be refreshed.


15 posted on 05/23/2013 7:39:27 AM PDT by kjam22 (my newest music video:http://www.youtube.com/watch?v=l7gNI9bWO3s)
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To: massgopguy

Is EO 10491 an Obama EO?

(And I don’t particularly expect Obama to follow even his own rules. He cheats at every game he plays.)


16 posted on 05/23/2013 7:39:53 AM PDT by MortMan (Disarming the sheep only emboldens the wolves.)
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To: billorites

17 posted on 05/23/2013 7:40:12 AM PDT by JoeProBono (Mille vocibus imago valet;-{)
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To: BigDaddyTX

Agree. I think the interchange between Issa an Gowdy was planned, and beautifully done..


18 posted on 05/23/2013 7:40:30 AM PDT by ken5050 (Due to all the WH scandals, MSNBC is changing its slogan from "Lean Forward" to "BOHICA")
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To: massgopguy

RE: EO 10491. I call Red Herring.

You’re not gonna see 10491 invoked: that was an EO under Eisenhower involving the termination of employees deemed to be a national security risk - during the McCarthy ‘red scare’ era. To the contrary, this administration would probably embrace those kinds of people.


19 posted on 05/23/2013 7:42:36 AM PDT by alancarp (Obama will grab your guns and ship them to Mexican drug mobs.)
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To: BigDaddyTX

Where is the video?


20 posted on 05/23/2013 7:42:36 AM PDT by Toespi
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To: MortMan
First the MSM told us that Bush was to dumb to know what was going on and to run the government. Now they're trying to convince us that Obammy is to smart for either of them.
21 posted on 05/23/2013 7:43:27 AM PDT by kjam22 (my newest music video:http://www.youtube.com/watch?v=l7gNI9bWO3s)
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To: billorites

It is going to be quite interesting to see how well all the people Soetoro throws under his bus do after the brouhaha ratchets down. There are going to have to be some BIG payoffs to the people who take the fall protecting Barack “the Constitution Killer” Hussein. Of course, the most effective one would be the right to keep breathing.


22 posted on 05/23/2013 7:43:38 AM PDT by immadashell
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To: FlingWingFlyer

She’s toast. Hope she has some one else start her car in the am.


23 posted on 05/23/2013 7:44:46 AM PDT by DownInFlames
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To: maggief

Looks like making up the rules as you go along may catch up with


24 posted on 05/23/2013 7:45:56 AM PDT by hoosiermama (Obama: "Born in Kenya" Lying now or then.u)
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To: Wordkraft
My point is, you can say "I don't recall" without explicitly invoking your 5th Amendment rights and there is nothing they can do.

They can't force you to remember something that you "don't remember."

25 posted on 05/23/2013 7:46:51 AM PDT by E. Pluribus Unum ("Somebody has to be courageous enough to stand up to the bullies." --Dr. Ben Carson)
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To: E. Pluribus Unum

They can’t make you remember. All they can do is find you guilty and throw you in jail... and make you wish you might have had a memory.


26 posted on 05/23/2013 7:48:37 AM PDT by kjam22 (my newest music video:http://www.youtube.com/watch?v=l7gNI9bWO3s)
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To: E. Pluribus Unum

Unless she has previously indicated knowledge of the question topic during previous questioning or in previous writings.


27 posted on 05/23/2013 7:48:45 AM PDT by gov_bean_ counter (Romans 1:22 Professing themselves to be wise, they became fools,)
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To: billorites
Yesterday, I was thinking either her lawyer wasn't up to snuff or that he was in cahoots with the WH to take Lerner down. Now, I'm thinking it is just overweening arrogance on her part. She thinks she shouldn't be held to the same rules as everyone else. "You'll hear what I have to say and that's it."

She is a true daughter of the Revolution. She's been at this kind of stuff for a long time. Before the IRS, she was hammering people through the FEC and, as Pamela Geller at Atlas Shrugs describes, was head of the Enforcement Division of the FEC and made sure not to investigate the mountain of illegal overseas money rolling into the Obama campaign coffers. Remember this sort of thing?



She's had a controlling hand in corrupting TWO presidential elections.

28 posted on 05/23/2013 7:48:46 AM PDT by Paine in the Neck (Socialism consumes everything. Bolshies' gonna bolsh.)
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To: kjam22
They can’t make you remember. All they can do is find you guilty and throw you in jail... and make you wish you might have had a memory.

You must have the GOP confused with somebody with some gonads.

29 posted on 05/23/2013 7:52:08 AM PDT by E. Pluribus Unum ("Somebody has to be courageous enough to stand up to the bullies." --Dr. Ben Carson)
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To: billorites

In the 1990’s, Lerner also served as chief of enforcement at the Federal Elections Commission.

Under her direction, the FEC undertook the largest enforcement action in its history — suing the Christian Coalition for violating campaign laws. The Christian Coalition won, but in one deposition, FEC lawyers asked a defendant if televangelist Pat Robertson prayed for him.

James Bopp, the Christian Coalition’s lawyer, said he was “shocked and appalled” by that.

“Both political activity and religious activity are specifically protected by the First Amendment,” he said.

When Bopp learned years later that Lerner had been promoted to an IRS position, he became concerned.

“She was in effect being promoted for what she had done at the Federal Election Commission and now was going to be expected ... to replicate that at the IRS and now we know that’s exactly what happened,” he said.

Lerner is represented by lawyer William W. Taylor, who is noted for winning a dismissal of all charges against former IMF director Dominique Strauss-Kahn in a high-profile sexual assault case.

Read more: http://www.foxnews.com/politics/2013/05/23/irs-official-who-refused-to-testify-facing-more-scrutiny-over-scandal-past/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+foxnews%2Fpolitics+%28Internal+-+Politics+-+Text%29#ixzz2U7ydyFA1


30 posted on 05/23/2013 7:53:07 AM PDT by KeyLargo
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To: UCANSEE2

he’ll grant it to everyone so we can have all the ‘facts’ and nobody serving a day behind bars.


31 posted on 05/23/2013 7:53:09 AM PDT by wiggen (The teacher card. When the racism card just won't work.)
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To: billorites
She's typical of all the stupid Liberals who believe they have some God given right to constantly ‘have it both ways'.

When you are intellectually sloppy and routinely spew dated and groundless blather... it is a comfort to believe that you can ‘have it both ways'...i.e., say what the he%$ ever you want, and NEVER corroborate anything that comes out of your mouth... yet demand perfect credulity from EVERYONE else!’.

Too bad, but once in a while you run into a brick wall... it's called REALITY.

THIS particular Liberal made the mistake of pulling this stunt IN PUBLIC and in FULL VIEW of all and sundry.

Even the traditionally biased MSM can't undo what she so recklessly and arrogantly did for all the world to see! :)

32 posted on 05/23/2013 7:53:59 AM PDT by SMARTY ("The man who has no inner-life is a slave to his surroundings. "Henri Frederic Amiel)
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To: COBOL2Java

We’ll learn his opinion tonight...


33 posted on 05/23/2013 7:54:02 AM PDT by Vendome (Don't take life so seriously, you won't live through it anyway)
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To: E. Pluribus Unum

Yep... nobody really wants to take this to the next level.... except maybe Rep Jordan. He’s ready to go to the next level. A republican Governor needs to invite her to some event in their state. Then arrest her on state charges for violating their citizens civil rights. Throw her in jail pending jury trial...without probation because she is likely a flight risk..... and then sit tight for a while.


34 posted on 05/23/2013 7:54:45 AM PDT by kjam22 (my newest music video:http://www.youtube.com/watch?v=l7gNI9bWO3s)
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To: E. Pluribus Unum

IRS Secretary Arrested for Racking Up $8,515 of Personal Items on Agency Credit Card

Posted 3 hours ago by Dave Jolly Filed under Crime, Government Spending, Morality

Once the cork popped on the sacred establishment known as the Internal Revenue Service, it seems that almost every day some new scandal or problem surfaces.

In the latest news rising out of the ashes of what once were the pristine halls of the IRS, a secretary has been arrested and charged with a felony for using an IRS issued credit card for personal items. Yetunde Oseni, 37 started working as a secretary in the Lanham, Maryland office of the IRS in 2000. In 2009, she was issued a Citibank MasterCard to be used for the purchasing of office supplies.

It appears that Oseni decided that she could use her IRS MasterCard to purchase personal items off the internet, mostly at Amazon.com. When asked for the receipts for her purchases, she tried to alter them so as to hide her personal spending. An investigation was launched and it was discovered that Oseni had purchased a minimum of $8,515 worth of items for her and her family. Among her purchases were:

Chocolate fondue fountain
Bollywood movies
Pampers
Omaha steaks
Harlequin romance novels
Apple Bottoms skinny jeans
Mango body wash
Ginsu knife set
2 plus size trench coats
Hello Kitty cosmetic set and Dream Diary Kit
MAC Haughty & Naughty lash mascara
Nostalgia Electrics RSM-702 Retro Series snow cone maker
3 lbs party candy
Toy piñata
Lansinoh lanolin nursing cream
4 prs Leveret children pajamas

Read more: http://godfatherpolitics.com/10961/irs-secretary-arrested-for-racking-up-8515-of-personal-items-on-agency-credit-card/#ixzz2U7zFy7ci


35 posted on 05/23/2013 7:55:14 AM PDT by KeyLargo
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To: E. Pluribus Unum

Sure she can, and in Response Issa can say, ‘Fine, you wish to play that way so be it, we have your testimony dated... and we have your written testimony that you agreed yesterday was in fact your answers to our questions. If you don’t care to help us clear up the discrepencies in the testimony and facts that the IG presented along with other witnesses we deposed over the last week we will now proceed to vote on a count of perjury.

He could do that after every question. All Day. Every two or three perjury counts he could add another count of obstruction of congress charge.


36 posted on 05/23/2013 7:57:17 AM PDT by VRWCarea51
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To: ken5050

There isn’t a lawyer in the world that would not properly instruct their client on the procedure for invoking the fifth. My heavens, she is an attorney herself. She had a prepared statement, which had to have been prepared or at least approved by her attorneys. This was stunning and to have proceeded without researching this issue would have been legal suicide.


37 posted on 05/23/2013 7:59:24 AM PDT by Toespi
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To: massgopguy
In accordance with Executive Order 10491. Any Federal Employee who invokes the 5th Amendment before congress. They are terminated.

Since Lerner will probably be fired anyway, why would that stop her from negotiating 'immunity' by refusing to testify based on the 5th Amendment ?

38 posted on 05/23/2013 7:59:27 AM PDT by UCANSEE2 (The monsters are due on Maple Street)
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To: billorites
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.”

To heck with her, what about the rest of us? This means any of us could unintentionally "waive the privilege" before we knew we might need to use it.

Aside from duty, honor, the pursuit of justice, etc., why should anyone answer any questions ever? You can screw yourself without meaning to or even knowing it.

39 posted on 05/23/2013 8:00:06 AM PDT by KrisKrinkle (Blessed be those who know the depth and breadth of their ignorance. Cursed be those who don't.)
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To: massgopguy

The departments included in this executive order are named specifically and the IRS is not.


40 posted on 05/23/2013 8:01:51 AM PDT by Vendome (Don't take life so seriously, you won't live through it anyway)
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To: Toespi
There isn’t a lawyer in the world that would not properly instruct their client on the procedure for invoking the fifth.

And just what 'law firm' are these lawyers working for?

41 posted on 05/23/2013 8:02:30 AM PDT by UCANSEE2 (The monsters are due on Maple Street)
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To: VRWCarea51

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.


42 posted on 05/23/2013 8:04:00 AM PDT by VRWCarea51
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To: BigDaddyTX

I think you have an insight here.


43 posted on 05/23/2013 8:04:46 AM PDT by arthurus (Read Hazlitt's Economics In One Lesson ONLINE http://steshaw.org/econohttp://www.fee.org/library/det)
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To: KeyLargo

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.


44 posted on 05/23/2013 8:05:32 AM PDT by Ax
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To: massgopguy

Fascinating. Signed by Dwight Eisenhower.

http://en.wikisource.org/wiki/Executive_Order_10491


45 posted on 05/23/2013 8:07:41 AM PDT by Kevmo ("A person's a person, no matter how small" ~Horton Hears a Who)
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To: massgopguy
In accordance with Executive Order 10491. Any Federal Employee who invokes the 5th Amendment before congress. They are terminated.

Well DUH...everyone expects that level of accountability, except perhaps this criminal administration.

46 posted on 05/23/2013 8:12:47 AM PDT by 1Old Pro
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To: massgopguy

I believe, only if it is shown to be an issue of national security. 10491 modified 10450 and does not stand alone.


47 posted on 05/23/2013 8:26:25 AM PDT by thackney (life is fragile, handle with prayer)
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To: billorites

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.


48 posted on 05/23/2013 8:28:06 AM PDT by Vendome (Don't take life so seriously, you won't live through it anyway)
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To: billorites

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.)


49 posted on 05/23/2013 8:32:50 AM PDT by Norseman (Defund the Left-Completely!)
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To: billorites

I knew this, the question is why Issa didn’t know this. He’s been a huge disappointment.


50 posted on 05/23/2013 8:41:11 AM PDT by Jabba the Nutt (.Are they stupid, malicious or evil?)
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