May 22, 2013

Issa says Lois Lerner waived her right against self-incrimination...

... by making an opening statement before invoking her Fifth Amendment privilege. She asserted: “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 committee.”
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.”

96 comments:

David said...

The answer ought to be fairly clear, you would think.

If there any doubt that she did not waive, her lawyer needs some CLE credits.

Or maybe they just thought the rules do not apply to her.

gutless said...

That's the way I was taught the law.

David said...

I think today's theme is coherence vs. incoherence.

T J Sawyer said...

She can't even take the fifth correctly? Now that's IRS incompetence!

edutcher said...

Stand by for weaseling on the some phony folksy scale.

Looks like what the meaning of "is" is may well find some company in the lexicon.

Becon said...

Well, Ann, you're the law professor. What's your opinion?

Toby said...

Can the lawyers (or constitutional law professors) in the audience provide any insight on this issue? Is the fifth amendment really an all-or-nothing thing?

Loren said...

How can you say that you are innocent, and then state that further statements will incriminate you? Isn't there a logical disconnect?

Loren said...
This comment has been removed by the author.
Jake said...

Frankly, what surprised me most about the hearing was that they didn't make her invoke for every single question.

AllenS said...

So, what is it, Law Professor, did she lose her rights the minute she started proclaiming her innocence, or didn't she?

Jake said...

More on point, I think Issa's wrong. This wasn't a criminal trial where she voluntarily took the stand. She was subpoenaed (compelled to appear). This isn't unlike someone that was arrested, made some voluntary statements to police and then realized it was smarter to shut up.

AprilApple said...

Progressive: Radical leftwing extremist who operates outside of the law.

What's the problem?

Big Mike said...

Even if Issa is correct with respect to the law, he's wrong with respect to the optics.

He should have made a little speech along the lines of "we respect your right to invoke your Fifth Amendment right against self-incrimination, and as a matter of law we draw no negative conclusions regarding possible criminal activities on your part. Nonetheless a great wrong has been done to American citizens attempting to exercise their rights, and we find it unfortunate that you will make no effort to assist us in understanding how this came to pass and what can be done to assure that it never happens again.

Something like that.

Methadras said...

Man, talk about shoving your fist in your mouth.

"I did nothing wrong."

"I plead the fifth."

Oh wait.

Amartel said...

Jake said "More on point, I think Issa's wrong. This wasn't a criminal trial where she voluntarily took the stand. She was subpoenaed (compelled to appear). This isn't unlike someone that was arrested, made some voluntary statements to police and then realized it was smarter to shut up."

You're mixing Amendments.

Also, she made her statement about not having done wrong under oath, it was part of her testimony. This is an implicit waiver of the right against self-incrimination. She had a lawyer with her and so she cannot claim she was operating in ignorance and making an unknowing waiver. I have clients who have had to take the 5th. You state your name and then you take the 5th, STFU, the end. You don't get to make a big self-serving speech.

Methadras said...

Jake said...

More on point, I think Issa's wrong. This wasn't a criminal trial where she voluntarily took the stand. She was subpoenaed (compelled to appear). This isn't unlike someone that was arrested, made some voluntary statements to police and then realized it was smarter to shut up.


How can you proclaim you did nothing wrong and in the next breath plead the 5th to not incriminate yourself and not have that right voided due to your prior admission of innocence?

Jake said...

Amartel - Which amendment am I referring to if I am wrong?

I'd like to see a precedent rather than your anecdotal reference and the appeal to yourself as authority.



Methadras said...

Big Mike said...

Even if Issa is correct with respect to the law, he's wrong with respect to the optics.

He should have made a little speech along the lines of "we respect your right to invoke your Fifth Amendment right against self-incrimination, and as a matter of law we draw no negative conclusions regarding possible criminal activities on your part. Nonetheless a great wrong has been done to American citizens attempting to exercise their rights, and we find it unfortunate that you will make no effort to assist us in understanding how this came to pass and what can be done to assure that it never happens again.

Something like that.


The optics (I hate that expression) or rather the perception of grandstanding like this would have been a worse outcome played by the left over and over and over again. Nope, she fucked up, Issa got it right.

Amartel said...

What I would be interested in knowing is whether it is true, as Cummings claims, that the 5th Amendment somehow operates differently in House hearings than it does in court. I really do not see how it would or should.

dreams said...

It doesn't matter the crooked Dems can get away anything as long as they have the liberal media on their side and they do. Our country has past the point of no return.

Bob Ellison said...

Issa is correct. The Fifth Amendment to the U.S. Constitution doesn't say "citizens shall get to answer those questions they want to, and not answer those they don't like."

Issa should accuse Lerner of failure to testify. This is basic.

Methadras said...

Trey Gowdy (R-S.C.) spoke up that Lerner should testify, agreeing that she already waived her constitutional privilege.

“You don’t get to tell your side of the story and not be subjected to cross-examination. That’s not the way it works. She waived her right to Fifth Amendment privilege by issuing an opening statement, she ought to stand here and answer our questions,” Gowdy said, earning applause from the audience.

LilyBart said...

How can you say that you are innocent, and then state that further statements will incriminate you? Isn't there a logical disconnect?

I need an explaination on this too.

Bob Ellison said...

Issa does not, I think, have the power to absolve Lerner of crimes. He probably does, I think, have the power to absolve her of possible contempt of Congress. If so, he should do so.

"Say what you will, Lerner; admit to blending puppies for years, and we will not use that against you. But tell the truth to us now, or we will hold you in contempt."

Ann Althouse said...

"Well, Ann, you're the law professor. What's your opinion?"

I'm not a criminal law expert. I could research the topic and arrive at an opinion, but I'm not doing that right now. Sorry. I can only present the issue.

traditionalguy said...

I watched her performance live. She testified that she did nothing wrong in her career, and then she said she refused to testify on the subject of the hearing...because she is the victim, or something.

She kept her abused woman face going at academy award levels.

But a high level bureaucrat running an IRS operation with a $100,000,000 budget is no victim. She is the monster.


The Drill SGT said...

T J Sawyer said...
She can't even take the fifth correctly? Now that's IRS incompetence!


For better or worse, Lerner is herself a lawyer...

B said...

She'll ask for a do over claiming her attorney did not advise her on the right way to plead the 5th.

Issa needs to start playing hardball with these people. Lerner answers the questions or is held in contempt.

Miller has to be getting nervous. If he gets another subpoena I bet he won't get to play mickey the dunce OR invoke the 5th.

Bob Ellison said...

I'm not a criminal law expert either. Hell, I'm not even a lawyer. But I know bullshit when I see and hear it.

traditionalguy said...

They can hold her n contempt of Congress and arrest her.

But she can make a female victim face going all year long while Issa is called a crook and a thug by the Alynski Method practitioners.

It's the War on Women deja vu.

The Drill SGT said...

traditionalguy said...
She kept her abused woman face going at academy award levels.

But a high level bureaucrat running an IRS operation with a $100,000,000 budget is no victim. She is the monster.


She is a member of the Senior Executive Service (SES), e.g a civilian General in Army speak. She's not a victim. She hung herself out there and has a big target on her back, but there by the WH, hoping the mob will be satisfied with the sacrifice.

She doesn't have the decency to take one for The Won...

PS: Her Husband is also a lawyer :)

B said...

The provocative arrogance of these liars is nothing but a mere glimpse of face of this administration.

I want David Axelrod in that chair answering very specific questions.

jacksonjay said...


Cummings crowed in his opening statement that the proceeding should or would (I can't remember) be run like a court! That is what prompted Gowdy to jump in with the courtroom reference! Cummings then said "but this isn't a court of law!"

Truf and Trust!

edutcher said...

Jake said...

More on point, I think Issa's wrong. This wasn't a criminal trial where she voluntarily took the stand. She was subpoenaed (compelled to appear). This isn't unlike someone that was arrested, made some voluntary statements to police and then realized it was smarter to shut up.

She was under oath. Subpoena just means you have to show up, rather than request to appear. I'm pretty sure almost anybody who testifies before Congress is sworn in.

Issob Morocco said...

Was she told to take the body blow by voiding her 5th today? She seemed very agitated, especially when she had to wait for the document from Issa to come to her to read. She read it like an embittered school marm.

Was that because she knew she was the lamb to the slaughter that Ezra DeKlein is now claiming should happen after visiting with Jay Carney?

Marshal said...
This comment has been removed by the author.
Marshal said...

Amartel said...
I have clients who have had to take the 5th. You state your name and then you take the 5th, STFU, the end. You don't get to make a big self-serving speech.


What's the remedy? Is it a strike or mistrial? Or does the court demand testimony?

wildswan said...

Jimmy Hoffa wouldn't even acknowledge his name when he took the Fifth.

I say that taking the Fifth is a statement that one's testimony would involve admitting to a crime. The point is that the government can't use that as shortcut - "oh look, she admits it." The government still has to develop the evidence. But someone who takes the Fifth should not be on the public payroll and particularly not suppervising others who might be involved with her.

Unknown said...

Wait -

So after making an opening statement in the blog post, Ann refuses to answer further questions to draw a conclusion?

;)

Lem said...

She meant to take the 5th after trying the first first.

You don't go to a fine restaurant and ask for the 5th course first. You start out with the first course first... that's why they call it the blues.

dreams said...

The Republicans have already been intimidated by the liberal media and fear being accused of overreach so they walk softly without even a big stick. The Dems and liberal media win and democracy loses.

Original Mike said...

"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,”

Yes, but now she's off having a latte somewhere and Issa's looking at an empty chair, so it looks like she can turn it on and off.

Paddy O said...

Isn't the fifth amendment part of the Constitution?

Amartel said...

If the right is waived testimony is compelled.

Jacksonjay pointed out that Cummings said the hearing would be run like court so it's rather hilarious that he's trying to claim it's suddenly 'not like court' in order to get Lerner out of a bad situation. There should be no difference in the way the right operates substantively as between court and a House hearing. Procedurally, in court, the witness would not be required to invoke the right on the stand in front of the jury. (Too prejudicial. At least that's how we roll out here in Cali.) Substantively, Lerner waived her right. It's on now. Issa seems to have done his homework at the lunch break.

Anthony said...

My understanding was that you could plead the 5th at any time, but if you started answering questions after that, you could not re-plead.

From Inwood said...

Showing my age, "diminished fifth".

During the '50s some did not follow Amartel's script:

[You} have to take the 5th. You state your name and then you take the 5th, STFU, the end. You don't get to make a big self-serving speech.

This arose out of Congressional hearings where some who had previously glorified the perverted ideas of Stalinism would then posture & answer a few questions or speechify & then “Take the Fifth” thereafter. Such witnesswas said to have taken a "diminished fifth" (a play on the musical term)

Don't think that any of these witnesses was called later on such contradictory tactic, but that's not my area of expertise.

I grow old … I grow old …
I shall wear the bottoms of my trousers rolled.

Marshal said...

wildswan said...
But someone who takes the Fifth should not be on the public payroll and particularly not suppervising others who might be involved with her.


Also true. Refusing to tell your employer how you executed your job functions should result in immediate termination.

Chip Ahoy said...

This changes everything. I thought that, "I take the fifth" means that they're not answering a specific question, so a salvo of damaging questions then is fashioned to make each instance of "I take the fifth" sound like "oh jeeze, I'm guilty and this whole thing totally stinks." Roll with the hits and then at the end of the drilling you go home and drink the entire contents of a specific size bottle of whiskey.

Marshal said...

Volokh has not yet weighed in.

Icepick said...

I believe the way it works is she can be cross examined about the statement she made. Since that statement was very broad, she has effectively waived her rights.

Dante said...

Testifying in a Legal Proceeding

At trial, the Fifth Amendment gives a criminal defendant the right not to testify. This means that the prosecutor, the judge, and even the defendant’s own lawyer cannot force the defendant to take the witness stand against his or her will. However, a defendant who does choose to testify cannot choose to answer some questions but not others. Once the defendant takes the witness stand, this particular Fifth Amendment right is considered waived throughout the trial.

bpm4532 said...

I think that pleading the 5th is a right at any time, unless the witness has been provided immunity, regardless of the seeming contradictions of prior testimony.

Congress doesn't have the right to offer immunity from criminal prosecution, only contempt of Congress, but statements made under oath to Congress can be used to demonstrate perjury in a criminal proceeding.

Congress is closer to a grand jury than a trial, but a prosecutor does have the ability to offer immunity in a grand jury. Thus immunized, the witness can be compelled to testify or face incarceration until such time as they are willing to comply.

Seeing Red said...

Issa's been busy, Drudge? had that he met Bennie Bern privately.

bpm4532 said...

from the 5th: "... nor shall be compelled in any criminal case to be a witness against himself..."

This isn't a criminal trial.

David said...

Dante, that's in a trial. The question is whether the rule is any different in a congressional hearing. My bet--I'm no expert either--is that there are exceptions to that general rule even in a trial.

Also in a trial you can only be cross examined on the subject matter of your direct examination.

AllenS said...

bpm4532 said...
Congress is closer to a grand jury than a trial, but a prosecutor does have the ability to offer immunity in a grand jury.

It is my understanding that you cannot have a lawyer present when testifying in front of a grand jury. Am I right, anyone?

AJ Lynch said...

I try to have a fifth on the 4th.

AllenS said...

Taking a fifth, means that there's one left to go in the six pack.

edutcher said...

David said...

Dante, that's in a trial. The question is whether the rule is any different in a congressional hearing.

I don't believe so. IIRC, testimony is still testimony.

I'm thinking Watergate and Ollie North here.

bpm4532 said...

A defense lawyer may not be present in a grand jury, but a witness may plead the 5th. If a witness starts to testify, they have waived their right to plead the 5th.

However, grand jury testimony can only be used to indict for criminal trial but grand jury testimony may not be introduced at trial, except to impeach a witness in cross-examination.

Again, while a Congressional hearing is closer to a grand jury than a trial, it lacks the ability ot offer immunity and compel testimony and defense lawyers are allowed.

This whole affair seems to be caught up in the legal seeming setting, but which is really a political oversight proceeding.

I think the witness has a right to not any question in this venue, but must face the career/political/social consequences of having contempt for Congress, yet with little legal jeopardy.

As most left-wing democrats show pride in holding those who oppose them with contempt, indications that Ms Lerner is such an individual may actually bring her great pride in taking one for the team.

Christopher said...

I'm pretty sure almost anybody who testifies before Congress is sworn in.

Definitely not. Although this old Slate article says witnesses are typically sworn in for hearings about investigations and confirmations.

This more recent Breirtbart story notes Hillary! did not take an oath in her Benghazi testimony, though underlings did.

I seem to vaguely recall some committee chairman routinely having everyone take the oath, and I thought it was to make sure he at least had a shot at getting more accurate testimony someday if it were ever crucial, without raising the stakes. Or, you know. Seeming un-neighborly. See above.

cubanbob said...

Issa should subpoena her again and threaten her with contempt of congress. She then could answer every question like a mob boss by pleading the fifth. The optics would be wonderful and useful for pushing for numerous special prosecutors.

Original Mike said...

"Issa should subpoena her again and threaten her with contempt of congress. She then could answer every question like a mob boss by pleading the fifth. The optics would be wonderful and useful for pushing for numerous special prosecutors."

For the life of me, I do not understand why that didn't happen today. Increasing, if there's not video, "it didn't happen".

Hagar said...

Cummings: Besides which she is a Democrat.

FWBuff said...

James Taranto in his "Best of the Web" column in the online WSJ today has an interesting speculation about Lerner's decision to take the Fifth. He thinks she is trying to protect herself from being set up as Obama's scapegoat in the whole IRS scandal, especially since the Journolisters targeted her this morning after their meeting at the White House yesterday afternoon. http://online.wsj.com/article/SB10001424127887323975004578498971095332686.html?mod=WSJ_Opinion_MIDDLETopOpinion

rhhardin said...

It seems to me you can invoke the right anytime you want.

The right response it a grant of immunity, if you're not after her but after who's behind it; or going to trial without her testimony otherwise.

Amartel said...

Okay, so I looked around on the web and found that the journos are out in force defending Lerner.

From New York Magazine:

"First, unlike in a trial, where she could choose to take the stand or not, Lerner had no choice but to appear before the committee. Second, in a trial there would be a justifiable concern about compromising a judge or jury by providing them with “selective, partial presentation of the facts.” But Congress is merely pursuing information as part of an investigation, not making a definitive ruling on Lerner’s guilt or innocence.

“When somebody is in this situation,” says Duane, a Harvard Law graduate whose 2008 lecture on invoking the Fifth Amendment with police has been viewed on YouTube nearly 2.5 million times, “when they are involuntarily summoned before grand jury or before legislative body, it is well settled that they have a right to make a ‘selective invocation,’ as it’s called, with respect to questions that they think might raise a meaningful risk of incriminating themselves.”

In fact, Duane says, “even if Ms. Lerner had given answers to a few questions — five, ten, twenty questions — before she decided, ‘That’s where I draw the line, I’m not answering any more questions,’ she would be able to do that as well.” Such uses of selective invocation “happen all the time.”

Sounds like Special Rules for Entitled Fools to me. Is Harvard expert Duane making shit up? "Well settled" is something you hear from "experts" on topics that are not, in fact, well settled. Like they're trying to shut down debate before it starts.

edutcher said...

Christopher said...

I'm pretty sure almost anybody who testifies before Congress is sworn in.

Definitely not. Although this old Slate article says witnesses are typically sworn in for hearings about investigations and confirmations.

This more recent Breirtbart story notes Hillary! did not take an oath in her Benghazi testimony, though underlings did.


In most hearings, I believe they are.

Granted, celebrities testifying on behalf of the snail darter aren't.

Odd they wouldn't swear in the Hildabeast, although all of them were probably wondering what the Ozark Mafia might have on them.

edutcher said...

For those who may not know, Lerner was a hitbroad for the FEC during the Clinton years.

The same people, always rising to the top.

Like scum.

Christopher said...
This comment has been removed by the author.
Christopher said...

@edutcher, I've attended, and reported on, scores of congressional hearings where no one was asked to take an oath.

Alex said...

Of course it broke along partisan lines, as always.

66 said...

If you liken a congressional investigation to a grand jury proceeding, which is not a perfect analogy by any stretch, a witness under subpoena does not waive her fifth amendment right merely by taking the stand and answering questions.

The US Attorney's Manual explains:

9-11.154 Advance Assertions of an Intention to Claim the Fifth Amendment Privilege Against Compulsory Self-Incrimination

A question frequently faced by Federal prosecutors is how to respond to an assertion by a prospective grand jury witness that if called to testify the witness will refuse to testify on Fifth Amendment grounds. If a "target" of the investigation and his or her attorney state in a writing, signed by both, that the "target" will refuse to testify on Fifth Amendment grounds, the witness ordinarily should be excused from testifying unless the grand jury and the United States Attorney agree to insist on the appearance. In determining the desirability of insisting on the appearance of such a person, consideration should be given to the factors which justified the subpoena in the first place, i.e., the importance of the testimony or other information sought, its unavailability from other sources, and the applicability of the Fifth Amendment privilege to the likely areas of inquiry.

Some argue that unless the prosecutor is prepared to seek an order pursuant to 18 U.S.C. § 6003, the witness should be excused from testifying. However, such a broad rule would be improper and make it too convenient for witnesses to avoid testifying truthfully to their knowledge of relevant facts. Moreover, once compelled to appear, the witness may be willing and able to answer some or all of the grand jury's questions without incriminating himself or herself.

Matthew Sablan said...

"I say that taking the Fifth is a statement that one's testimony would involve admitting to a crime."

-- No. It just means what you say -might- be used against you. In another thread, I used the example of admitting to being in a building a murder occurred in. You can take the 5th to force the prosecution to prove that another way, since that could help convict you. It is about conviction, not actual guilt/innocence.

Methadras said...

Marshal said...

Volokh has not yet weighed in.


Nor Little Miss Sullivan. She's still sulking.

Michael K said...

What she did, and I think it was pretty dumb, was to walk into a perjury trap eyes wide open. She was under oath and said she had done nothing wrong. When they get an underling who gives them the goods on her, she will go to jail for perjury. She would have been well advised to STFU.

Matthew Sablan said...

That of course assumes that was all they were going to ask you about; I would assume you should be able to selectively invoke the Fifth, but the actual mechanics of that in a trial would be wonky and look really bad for the defendant, so I can understand an all-or-nothing compromise for expediency by that point. Though, not sure about those that are -not- defendants.

William said...

I can't comment on the legalities, but it is seldom one sees the fifth pled with such sanctimony and self righteousness.

Methadras said...

The 5th protects people from being forced to incriminate themselves. To invoke the 5th amendment is to refuse to answer any question because there is a reasonable suspicion that answering any question directed towards there innocence or guilt might be used against that person.

I don't know if SCOTUS has weighed in on an all or none interpretation of the 5th with regard to how Lerner may have claimed she has done nothing wrong, but then invokes the 5th amendment regardless of whether she did or did not do anything wrong. Does her testimony of no wrong doing nullify her invocation of the 5th amendment after the fact? That is the question and I don't know if there is an answer. I'm sure people are on fire to find this out right now. Well, at least the apparatchiks of the regime are.

Jane said...

"Methadras said... How can you proclaim you did nothing wrong and in the next breath plead the 5th to not incriminate yourself and not have that right voided due to your prior admission of innocence?

Michael K said... What she did, and I think it was pretty dumb, was to walk into a perjury trap eyes wide open. She was under oath and said she had done nothing wrong."


It depends on what your definition of "wrong" is.

At the FEC, this woman went hammer-and-tongs for the Christian Coalition. (They won, but not without incredible monetary sacrifice).

I believe that she's either: (1) convinced of her self-righteous opinions and that she was morally right to target conservatives, libertarians, and Christian groups this time; or

(2) She's protecting you-know-who.

I lean more toward ideologue, with a narrow worldview and absolutely no cultural awareness, or else a heart that's simply cold with hatred. And that is very scary.

Eric Jablow said...

Of course she doesn't understand the Fifth Amendment. Why, Lois "Math Class Barbie" Lerner there can't even count to 5.

Jerome said...

Who is her immediate supervisor?

Dante said...

David,

Dante, that's in a trial. The question is whether the rule is any different in a congressional hearing. My bet--I'm no expert either--is that there are exceptions to that general rule even in a trial.

Yes, understood. I looked up the fifth yesterday or day before because I was curious about it, and the results were different than I had thought, and apparently others are have different thoughts too.

Anyway, the way around this is to get a prosecutor and subpoena her, from what I understand, then she will be compelled to testify. I think some (D) folks want to avoid that.

As a side note, it's a bit odd to me that two groups purportedly doing the "people's business" have such different views of what that entails.

Original Mike said...

"Who is her immediate supervisor?"

Good question. Found this on the "first page" of a google search:

Joseph Grant, Commissioner (Acting)
Michael Julianelle, Deputy Commissioner
Lois G. Lerner, Director, Exempt Organizations

Why do I feel uncomfortable accessing that web site?

Amartel said...

The Volokh has spoken, and the question turns on the character of her testimony before she invoked her right against self incrimination.

http://www.volokh.com/2013/05/22/can-a-congressional-witness-deny-guilt-and-then-plead-the-fifth/

"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."

Hmm, didn't she say she had answered the questions from Congress truthfully? Isn't that specific and not just a "view?"

Dante said...

"Methadras said... How can you proclaim you did nothing wrong and in the next breath plead the 5th to not incriminate yourself and not have that right voided due to your prior admission of innocence?

I understand a use of the fifth is to avoid confusing situations, in which other might come away with the wrong impression of guilt. Also, Issa and others are accusing Lerner of accuse Lerner of providing false information to Congress on four separate occasions."

Politico turns providing false information to "lying," which it isn't, and that's part of the legitimate reason for pleading the fifth.

Lerner seems like a headache for Democrats. Fortunately, they have a lot of Big Media willing to spin her side.

jmill said...

Question? Did she take the oath to tell the whole truth? Then she waived. Once a witness is sworn the 5th doesn't apply to that particular proceeding. As least so said Yale Kamisar years ago.

DEEBEE said...

Between the morning and later Issa got a Rush(Ed) cajones implantation

CEO-MMP said...
This comment has been removed by the author.
David said...

I do not know what the law is, but it does not offend me that a person would be allowed to make a general profession of innocence and then take the 5th Amendment on specific questions. This lady may indeed be a weasel, but she's also an American citizen confronted with the institutional power of an American government that is now out to get her. And I don't mean just the Republicans in Congress. She fully understands that the Obama administration would sacrifice her to protect its interests.

Seems to me that the individual citizen should have some leeway here. In a trial, the defendant is represented by counsel and has all the procedural and substantive protections of the justice system. In a Congressional hearing, it's the citizen surrounded by sharks.

dreams said...

A Fifth of Obama
By Andrew C. McCart

"Again, there are two obvious ways to handle the dilemma Issa found himself in. Option 1: Before permitting Lerner to read her self-serving statement into the record (and the cameras), you put her under oath and ask her, with her lawyer standing next to her, whether she intends to refuse to answer the committee’s questions; if she and counsel indicate that that’s the plan, you can either dismiss her there and then, or ask her a few questions to demonstrate that she will take the Fifth – but in either event, you don’t let her read her opening statement.

Or there’s Option 2: You let her read her statement, but then be ready to go with about 30 or 40 pointed questions designed to show how crooked she appears to be and thus how suspect her protestations of innocence are. When you do that, Mr. Chairman, your questions and her refusals to answer go on the TV news loop, too, and they make the administration look every bit as terrible as it deserves to look."

http://www.nationalreview.com/corner/349110/fifth-obama-andrew-c-mccarthy

Lance said...

@AllenS
"So, what is it, Law Professor, did she lose her rights the minute she started proclaiming her innocence, or didn't she?"

You should know better: lawyers don't give legal opinions away for free.

(That's one way to tell the President isn't a real lawyer. )

Molly said...

One thing I'm surprised that haven't seen more discussion about is the relevance of the Scooter Libby experience. Scooter Libby had not committed any crime until he testified; he could have avoided jail by taking the fifth, not because he was covering up a past crime, but because he was avoiding any opportunity to commit (or be accused of committing) a future crime.

AllenS said...

You make a good point, Lance. Hey, Althouse, do you presently have a law license, or are you just a law professor? You don't need a law license to teach, do you?

Clyde said...

Innocent people don't invoke the Fifth Amendment.