Video: Lerner takes the Fifth — or did she?

Hot Air ^ | 5-22-2013 | Ed Morrissey

[smoothsailing]

May 22, 2013

Video: Lerner takes the Fifth — or did she?

Ed Morrissey

Via Andrew Johnson at NRO, Lois Lerner’s decision to take the Fifth came as no surprise. What did come as a surprise was that Lerner actually started off by, er, testifying on her own behalf. Surprisingly, Lerner accepted Darrell Issa’s invitation to deliver an opening statement under oath, and then testified to the provenance of a transcript of her deposition to the Inspector General. Only at that point did Lerner plead the Fifth:

VIDEO

That poses a big question as to whether Lerner waived her Fifth Amendment rights to avoid self-incrimination. Rep. Trey Gowdy argued that the law does not allow a witness to testify on her behalf and then refuse to answer any other questions:

After Lerner’s statements, Representative Trey Gowdy (R., S.C.) argued she “waved her right to Fifth Amendment privilege” by making those statements and urged that she stay and answer questions: ”You don’t get to tell your side of the story and then not be subjected to cross-examination.” Lerner was ultimately allowed to invoke her Fifth Amendment rights and leave the hearing.

Issa did allow Lerner to leave the hearing after asking her twice whether she’d be willing to answer questions on narrower grounds, to which Lerner twice refused. However, Issa warned her she’d be subject to recall — and that the committee would be consulting counsel about her use of the Fifth Amendment. I’d guess that nothing much will come of it, except perhaps to purge her opening statement from the record, but shouldn’t an attorney like Lerner have seen that trap coming a mile away? It might explain how Lerner thought the question-plant strategy was a good idea, too.

[redgolum]

Rush was saying today it really doesn’t matter.

She will get promoted after it all dies down, and nothing will happen.

When Rush says this, you know that the game is near over.

[freeangel]

No doubt, this attorney told her that she was above the law just like the pos presbo and his enforcer, holder.

[Miles the Slasher]

I want to know why they didn’t make her stay plead the 5th for a number of questions...e.g., did you communicate with WH, etc. It would have had a great impact on TV for a IRS official to repeatedly plead the 5th.

The dems would have done it if the shoe was on the other foot. Why the hell didn’t Issa and the republicans?!

[DoughtyOne]

Thanks for the comments. There’s some worth in there regarding his former accomplishments and tactics used.

I’m not sure I agree that he did the smartest thing this morning. It’s open to interpretation of course.

[DoughtyOne]

Regarding partial testimony, the ability to only address what you want, not what may incriminate you in the same proceeding.

http://www.freerepublic.com/focus/news/3022577/posts?page=40#40

[DoughtyOne]

Sorry, meant to make this an all post...

Regarding partial testimony, the ability to only address what you want, not what may incriminate you in the same proceeding.

http://www.freerepublic.com/focus/news/3022577/posts?page=40#40

[V V Camp Enari 67-68]

Question, does the Congress have police power’s? If so, who enforces them by arrest etc.?

[Gay State Conservative]

It is well established that a witness may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details in a single proceeding.

I'm not a lawyer.I didn't even stay at a Holiday Inn last night.If,by chance,*you're* a lawyer do let us know and,having done so,your comments regarding legal issues will carry enormous weight with me and others at FR.But if you're not then it's likely that you'd have as little *practical* understanding of what's at the link you've provided as do I.

I understand "medicalese" quite well...having worked closely with physicians for many,many years and having been *required* to speak it in order to do my job properly.However I don't speak a word of "legalese" so the link you've provided means nothing to me.

[skeeter]

I imagine that once she walked out she’s off the hook. She wouldn’t make the same mistake twice.

[Gay State Conservative]

Question, does the Congress have police power’s? If so, who enforces them by arrest etc.?

I think that Congress only has the authority to *refer* matters to...wait for it....the Attorney General of the United States.

[smoothsailing]

I too would have preferred she be instructed repeatedly to answer questions. The more times she had to plead the 5th, the better. Issa obviously has something else in mind. My thinking is he allowed her to set a perjury trap for herself that he may find helpful later on. He appears to be in no hurry, playing the long game.

[ImJustAnotherOkie]

[DoughtyOne]

I’m not an expert on this. As I understand it the Contempt of Congress charge is a referral of sorts. It would be picked up by the Justice Department for action.

In an instance where the administration’s minions are the target of a referral, that’s not going to happen.

I’m not sure what the fall back position is, but it is unseemly to have these things take place as if a mere political exercise. If criminality exists, it should be addressed by both parties regardless of the perps credentials.

Let the chips fall where they will.

Since Clinton, we’ve essentially had periods of rogue government run amok.

[VideoDoctor]

if he doesn’t it will be crystal clear that his committee is a dog & pony show & nothing more.

Kabuki theater and NO INDICTMENTS.

Without INDICTING the guilty culprits your statement is absolutely correct.

[DoughtyOne]

After following the hearings associated with the Clinton administration, you pick up how the fifth can and can’t be used. I’m certainly willing to be corrected with regard to my opinions, if I’m off base. I have no problem with it whatsoever.

Thanks for your response.

No I am not an attorney. That’s why I said I am not an attorney.

[RonF]

"You don’t get to tell your side of the story and then not be subjected to cross-examination." Actually, you do. You can certainly pick and choose which questions you answer and which ones you invoke your 5th Amendment rights for and refuse to answer. The mistake was for the committee to permit her to make a statement without responding to any questions.

[DoughtyOne]

It does seem to me she could be called back in, read the riot act, and then given another opportunity to fully testify. If not then the Contempt charge goes forward.

I’m not convinced she skates simply because she has left the building.

[Gay State Conservative]

That’s why I said I am not an attorney.

I didn't catch that,sorry.

[RonF]

Any answer she gives to any question, and anything in the content of her statement under oath CAN be used against her. But giving the statement does not mean that she waived her right to invoke the 5th amendment to any subsequent question.

[kidd]

This might be a relevant case to consider for Issa’s actions:

Ohio v. Reiner (2001)
Link: http://supreme.justia.com/cases/federal/us/532/17/case.pdf

In this case the defendant claimed she had violated no laws and then took the 5th. This was a “shaken baby syndrome” case.

The SCOTUS sided with her and noted that if a defendent believes they are innocent but believes that answering questions could incriminate themselves under ambiguous circumstances, then they are entitled to the 5th.

I disagree that the stigma associated with a dead baby applies to Lerner. I don’t think that there is a gray area with Lerner. But Issa was wise to avoid going there without a better review Ohio v. Reiner.