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Video: Lerner takes the Fifth — or did she?
Hot Air ^ | 5-22-2013 | Ed Morrissey

Posted on 05/22/2013 10:21:23 AM PDT by 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.


TOPICS: Constitution/Conservatism; Crime/Corruption; Extended News; News/Current Events
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To: Miles the Slasher

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.


51 posted on 05/22/2013 11:12:50 AM PDT by smoothsailing
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To: miserare

52 posted on 05/22/2013 11:15:11 AM PDT by ImJustAnotherOkie (zerogottago)
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To: V V Camp Enari 67-68

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.


53 posted on 05/22/2013 11:17:03 AM PDT by DoughtyOne (Funny thing happened on the way to the Constitution burning, Lefties rights were violated...)
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To: skeeter
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.

54 posted on 05/22/2013 11:18:43 AM PDT by VideoDoctor
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To: Gay State Conservative

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.


55 posted on 05/22/2013 11:20:07 AM PDT by DoughtyOne (Funny thing happened on the way to the Constitution burning, Lefties rights were violated...)
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To: smoothsailing
"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.
56 posted on 05/22/2013 11:20:48 AM PDT by RonF
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To: skeeter

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.


57 posted on 05/22/2013 11:21:28 AM PDT by DoughtyOne (Funny thing happened on the way to the Constitution burning, Lefties rights were violated...)
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To: DoughtyOne
That’s why I said I am not an attorney.

I didn't catch that,sorry.

58 posted on 05/22/2013 11:23:08 AM PDT by Gay State Conservative (Leno Was Right,They *Are* Undocumented Democrats!)
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To: smoothsailing

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.


59 posted on 05/22/2013 11:24:44 AM PDT by RonF
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To: smoothsailing

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.


60 posted on 05/22/2013 11:29:39 AM PDT by kidd
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To: DoughtyOne

The following might be relevant:
http://www.freerepublic.com/focus/news/3022577/posts?q=1&;page=60#60


61 posted on 05/22/2013 11:32:58 AM PDT by kidd
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To: DoughtyOne; All
“I’m not an attorney. Perhaps someone can set me straight if I’m wrong.”

Rep Goudy was a Federal Prosecutor and he said that in giving her statement she had waived her right to claim the 5th.

62 posted on 05/22/2013 11:48:06 AM PDT by Beagle8U (Free Republic -- One stop shopping ....... It's the Conservative Super WalMart for news .)
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To: Beagle8U

*Gowdy


63 posted on 05/22/2013 11:48:54 AM PDT by Beagle8U (Free Republic -- One stop shopping ....... It's the Conservative Super WalMart for news .)
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To: DoughtyOne; xzins; blue-duncan; Forest Keeper; wmfights
It’s my understanding that once you testify at all, you lose your ability to claim the fifth.

If she was sworn in before making that statement, then she waived her fifth amendment rights as to anything in that statement.

She can't refuse to be cross examined on those questions and Issa should have issued a contempt of Congress citation and put her in jail under she answered every question that was relevant and on point as to the subject of her opening statement.

Her claim that she did nothing wrong and violated no laws was a waiver of any right she had not to testify. She did testify. I am disappointed in Issa on this, although he did state that the witness is subject to being recalled.

Is this just another dog and pony show, or are these guys serious?

64 posted on 05/22/2013 11:51:39 AM PDT by P-Marlowe (There can be no Victory without a fight and no battle without wounds.)
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To: Gay State Conservative

For a minute there I began to wonder if I had only thought it and not posted it. Here, I found it.

http://www.freerepublic.com/focus/news/3022577/posts?page=30#30

No problem...


65 posted on 05/22/2013 11:56:25 AM PDT by DoughtyOne (Funny thing happened on the way to the Constitution burning, Lefties rights were violated...)
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To: Beagle8U; kidd

Looks like we may have a conflict on interpretation.

http://www.freerepublic.com/focus/news/3022577/posts?q=1&;page=60#60

http://www.freerepublic.com/focus/news/3022577/posts?page=62#62


66 posted on 05/22/2013 11:58:56 AM PDT by DoughtyOne (Funny thing happened on the way to the Constitution burning, Lefties rights were violated...)
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To: P-Marlowe

I’m going back to the 90s for my answer. IMO they had the Clinton administration on the ropes a number of times. Then nothing.

I really gave up thinking House or Senate hearings would ever accomplish anything much.

Even the Articles of Impeachment were so watered down that it was a joke to even send them to the Senate.

There was so much more there, even that we were aware of. It mostly served to destroy my faith in our government.

Sadly, here we go again..., a chance to destroy this generations faith in government.


67 posted on 05/22/2013 12:02:12 PM PDT by DoughtyOne (Funny thing happened on the way to the Constitution burning, Lefties rights were violated...)
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To: DoughtyOne

I agree with Gowdy, but I think that there is enough grey area here that the matter can be given better consideration.

There’s no need to rush that I can think of (as Issa reserved the right to recall Lerner for future testimony)


68 posted on 05/22/2013 12:04:18 PM PDT by kidd
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To: kidd; All

Here we go...

Lerner will be called back!

http://www.freerepublic.com/focus/news/3022621/posts?page=1


69 posted on 05/22/2013 12:05:40 PM PDT by DoughtyOne (Funny thing happened on the way to the Constitution burning, Lefties rights were violated...)
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To: smoothsailing
"Exactly, she set her own perjury trap. It may well be this out of control arrogance that brings them all down."

I doubt it. The Republican Party is
too wimpy to say or do anything about it.

There will be no impeachments.
There will be no prosecutions.

The wimpy Republicans will make some noises to get themselves some publicity, then quietly put their tails between their legs and slink away once the media starts calling them "racists."

70 posted on 05/22/2013 12:06:37 PM PDT by StormEye
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To: DoughtyOne
It’s my understanding that once you testify at all, you lose your ability to claim the fifth.

I think you are mixing up a court trial with an investigation. During investigative questioning you can stop answering questions at any time you want.

If you take the stand in a trial you are fair game if you refuse to answer questions you are in contempt.

In this case there is no way to compel here to answer questions short of water boarding her.

71 posted on 05/22/2013 12:07:39 PM PDT by usurper (Liberals GET OFF MY LAWN)
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To: smoothsailing

She knew what she was doing. Yes, her opening statement will be purged, but none of the bells can be unrung.


72 posted on 05/22/2013 12:08:00 PM PDT by Cyber Liberty (I am a dissident. Will you join me? My name is John....)
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To: Gay State Conservative

She did not break any laws. IF the President tell you to do something it’s not illegal. The patriot act made all this possible.


73 posted on 05/22/2013 12:08:43 PM PDT by Orange1998
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To: Cyber Liberty

http://communities.washingtontimes.com/neighborhood/tygrrrr-express/2013/may/22/congressman-trey-gowdy-checkmates-lois-lerner/


74 posted on 05/22/2013 12:14:01 PM PDT by smoothsailing
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To: usurper

There seems to be some disagreement on this. I’m not an attorney or an expert, so I’ll have to defer ultimately.

Check this out... (two opinions are expressed / polar opposites)

http://www.freerepublic.com/focus/news/3022577/posts?page=66#66


75 posted on 05/22/2013 12:14:13 PM PDT by DoughtyOne (Funny thing happened on the way to the Constitution burning, Lefties rights were violated...)
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To: Orange1998
IF the President tell you to do something it’s not illegal.

Except,perhaps,for uniformed members of the Armed Forces I suspect that you're wrong.

76 posted on 05/22/2013 12:15:43 PM PDT by Gay State Conservative (Leno Was Right,They *Are* Undocumented Democrats!)
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To: DoughtyOne; kidd

It occurs to me, that by allowing her to make and statement and then allowing her to take the 5th, Issa is educating the low information voters on this issue as everyone yaps about is it right, legal or fair, etc.

This can easily gel public opinion even further against the IRS (and Obama) and then Issa can call her back to ask more pointed questions for her to plead the 5th on.

Maybe he is playing chess, when we want him to play checkers.


77 posted on 05/22/2013 12:54:32 PM PDT by Valpal1 (If the police canÂ’t solve a problem with brute force, theyÂ’ll find a way to fix it with brute forc)
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To: DoughtyOne
To claim the fifth, she should have taken a pass on the statement she made, and simply said she couldn’t testify because it might be self-incriminating.

Have you seen this woman in public speaking D1? She is absolutely so full of herself that she couldn't resist and I think Issa knew it.

If not recalled then Issa blew a great opportunity to spend just few minutes to get some powerful soundbites out of her. We'll see.

78 posted on 05/22/2013 1:03:12 PM PDT by houeto (https://secure.freerepublic.com/donate/)
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To: DoughtyOne
To claim the fifth, she should have taken a pass on the statement she made, and simply said she couldn’t testify because it might be self-incriminating.

Have you seen this woman in public speaking D1? She is absolutely so full of herself that she couldn't resist and I think Issa knew it.

If not recalled then Issa blew a great opportunity to spend just few minutes to get some powerful soundbites out of her. We'll see.

79 posted on 05/22/2013 1:03:31 PM PDT by houeto (https://secure.freerepublic.com/donate/)
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To: houeto

Damn doubles...


80 posted on 05/22/2013 1:26:44 PM PDT by houeto (https://secure.freerepublic.com/donate/)
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To: houeto

Thanks Houeto. No, I haven’t watched her. Sounds about right though.

These folks think they are above the law.


81 posted on 05/22/2013 1:27:00 PM PDT by DoughtyOne (Funny thing happened on the way to the Constitution burning, Lefties rights were violated...)
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To: luvbach1

You bet he can hold her in contempt.... We will start with $5000 per day every day you do not testify, Doubling every day. She will flip. Take immunity and agree to spill it all.


82 posted on 05/22/2013 3:11:49 PM PDT by Walkingfeather
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To: Gay State Conservative

I suspect I am right. All government employees are under the direction of President. Under the President orders involving national security doing what is ordered is not illegal. Ms Lerner cannot be held responsible IF the President ordered her to do it.


83 posted on 05/22/2013 9:09:55 PM PDT by Orange1998
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To: Gay State Conservative

Um they will have a very clear idea what she will testify to BEFORE granting immunity. If she doesnt she will have a clear understanding she will be sitting in a federal pen while her buddies are talking about her at cocktail parties. She will roll over, she is not that strong. She has F ed up big time and my bet is she flips far sooner than others think. Then it will all begin to roll like the stone in Raides of the Lost Ark, but everyone on the hill will be diving out of the way.


84 posted on 05/24/2013 8:15:23 AM PDT by Walkingfeather
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