Although court cases, both criminal and civil, are applicable, though somewhat different standards are applied, the general rule as to waiver is [the same]. 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.
May 23, 2013
Fred Thompson opines that Lois Lerner has waived her 5th Amendment privilege.
"As best I can remember, there is no case on point involving a congressional hearing."
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IANAL. Don't mistake this for a defense of Lois and the IRS and what they have done.
How does saying you are innocent of something somehow void your ability to self-incriminate? In such cases, why should the Government be the one that says Well, you've said you're innocent, now we have the right to make you self-incriminate?
"How does saying you are innocent of something somehow void your ability to self-incriminate?"
-- The key is whether you're saying it -in a trial/when testifying in court- I think. My opinion is that you should be able to do what Lerner did, but from what I've read, courts have decided it is unfair to let defendants/witnesses selectively choose what to answer and what not to answer. So, you either go all-or-none to prevent the spectacles that we see in movies/Law & Order where someone has to keep pleading the Fifth, interrupted occasionally by saying: "Yeah, I did have a Coke that night."
At least, that's my understanding from the last two days of commentary.
Is Fred Thompson a lawyer? At any rate, "as best as I can remember" is not much of a legal standard.
Given my opinion of Congressional hearings as show trials, I'd be very hesitant to say that she waived her 5th Amendment rights.
Fred Thompson is the minority counsel for Senate Republican during the Watergate Hearings. Yep, he was an government attorney before he was an actor. His actual role in the corruption case against the then governor of Tennessee resulted in getting offer by the film maker of the movie Marie to play himself.
Fred Thompson the Lawyer
Yeah, Thompson was an attorney. He served as an asst US Attorney and was minority counsel for the Senate Watergate Comm. Later he was inprivate practice.
You're perfectly welcome to testify to anything you want, but you can't testify and then pretend that you're not testifying. Just like you can't answer friendly questions you like, and then claim that you need not answer others that you don't like.
Note that she was also asked to authenticate her previous statement, to be entered into testimony. She did so.
BFD. She is the scapegoat and a mere lickspittle for the people truly responsible.
That monkey in the Whitehouse should be answering for this. The sanctimonious pasty faced lefties wanting to accuse me of racism are invited in advance to shove it; being that Obutthole was elected based on the colour of his skin and not the content of his character.
Also: Is it different when you're -not- a defendant? Note that she's just there to testify to facts; she's not on trial. Does that change how the Fifth works? For example, could random eye-witness Bob take the Fifth as to -why- he was on the shady street corner before saying -who- he saw shooting people there (assuming, of course, no one objected to the -why- question?)
I can't imagine any possible justification that would make it OK for an unsophisticated criminal defendant, with a barely sophisticated public defender, to have waived this right, but for her not to have in front of Congress. Extremely disturbing.
Opines? Bill O'Reilly word.
=========
Call her back.
Ask questions.
If she takes the fifth, throw her in jail for contempt until she testifies, or until the Court says let her out.
She and her attorney are wise guys. Shove it right back at em.
Is it different when you're -not- a defendant? Note that she's just there to testify to facts; she's not on trial. Does that change how the Fifth works?
People take the 5th all the time when testifying as a witness in civil cases. If you say it on record, it can be used against you later if charges are brought.
I think that it is different if, say, the statute of limitations for any wrongdoing is passed or you are otherwise immune to charges.
Isn't what Lerner did equivalent to the part of a criminal trial where you plead not guilty?
That analogy makes me think the privilege should not be deemed waived.
I think the number of oaths ought to be increased, perhaps to swearing on an eagle feather just to catch the lefties.
As I recall, you can cross your fingers and not lie.
I've heard this extended to crossed legs.
I've been absent from that legal system for a while so may have it wrong.
AA
Disagree. She was not there to enter a plea, like a pleading, or an Answer in a civil suit. She was there to testify about facts.
She, in effect, turned to the jury, said I didn't do anything wrong. I haven't lied. I'm not guilty of anything. And then, on cross, said - 5th Amendment.
Well, no. If you want to testify you did nothing wrong, then you have to submit yourself to other questions to see if that's true.
Congress needs the power to just shoot people.
What practical difference does it make? So she comes back today and takes the fifth anyway. They can't chain her to a chair and make her talk.
If the sacrificial goat won't testify maybe we could ask the perp to testify.
A lot turns out to depend on the good character of a critical mass of people.
That obviously does not obtain here.
There's no way to make it work with that many lefties in charge.
Tank said: Disagree. She was not there to enter a plea, like a pleading, or an Answer in a civil suit. She was there to testify about facts.
I agree. Entering a pleading is not testifying to facts, it's more asserting a status. Not the same thing.
"could random eye-witness Bob take the Fifth as to -why- he was on the shady street corner before saying -who- he saw shooting people there (assuming, of course, no one objected to the -why- question?)"
Yes if he reasonably fears prosecution for whatever it is he may testify to.
How does saying you are innocent of something somehow void your ability to self-incriminate? In such cases, why should the Government be the one that says Well, you've said you're innocent, now we have the right to make you self-incriminate?
Their argument is that ANY testimony provided under oath will void the Fifth. If you wish to offer testimony to your innocence, you cannot opt to clam up and not discuss anything else.
Also: Is it different when you're -not- a defendant? Note that she's just there to testify to facts; she's not on trial. Does that change how the Fifth works? For example, could random eye-witness Bob take the Fifth as to -why- he was on the shady street corner before saying -who- he saw shooting people there (assuming, of course, no one objected to the -why- question?)
If you're not the defendant, I don't know how the Fifth could be permitted in the first place.
Isn't what Lerner did equivalent to the part of a criminal trial where you plead not guilty?
But she went beyond "I'm not guilty".
The Committee permitted her to make an opening statement. She was hardly obligated to do so.
"If you're not the defendant, I don't know how the Fifth could be permitted in the first place."
-- The Fifth always applies, which is one of many reasons why you don't have to talk to cops. The question is how it applies in this specific circumstance (is it an on/off toggle, or is it a one-way road?)
Dershowitz opines that she waived it by saying anything. Also states that if her lawyer didn't advise against her doing so, he is guilty of malpractice.
"If you're not the defendant, I don't know how the Fifth could be permitted in the first place."
It has been construed to apply to everyone in any circumstance where the statements made could be used to criminally prosecute.
Happens all the time. For example, a woman is on trial for the murder of her husband's mistress. The husband is called to testify as a witness (has not been charged/ is not a party). He can invoke his 5th amendment right against self-incrimination and refuse to testify.
ya can't just say "there was wrongdoing, but i am innocent, here is why, and o yeah fifth amendment".
also, her lawyer sucks for letting her do this.
ya can't just say "there was wrongdoing, but i am innocent, here is why, and o yeah fifth amendment".
But she didn't say "here is why"
Ignore her, and drag in her boss, and everyone else who works in her office, and make them testify.
Thompson shows he is a good lawyer by providing a very concise and clear summation of the key points.
In grand juries vs trials, criminal vs civil courts, and defendant vs witness, the standards are different.
I would conclude she has waived her right to invoke the 5th and as a witness not a defendent, she doesn't have that right.
Dershowitz concurs with this.
One of the little noted events was that the head of the union for IRS employees visited with POTUS in early 2010 and the discrimination began in Cincinnati a couple days later. This may be the clear link to Obama.
Of course she waived the privilege. She said much more than "Not guilty." The extent of the waiver would be uncertain, however.
I think this will be used to make a deal for immunity and full testimony.
Dershowitz opines that she waived it by saying anything. Also states that if her lawyer didn't advise against her doing so, he is guilty of malpractice.
Think I would go with Dershowitz over Thompson! Not sure why Thompson is the go to source in this posting.
also, her lawyer sucks for letting her do this.
He is a SuperStar lawyer who go the French guy Dominique Strauss-Kahn out of hot water.
Jake said: But she didn't say "here is why"
Actually, she did. She said : “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.”
That's why. Those are statements of fact that go far beyond just stating one's lack of guilt.
LOL @ JacksonJay.
Thompson and Dersh say the same thing and his reaction is "why would you go with what Thompson said?"
Well here's a hint: Thompson was actually a lawyer involved in government hearings.
Dersh is great--but Thompson has that on him.
Plus, Ann, like so many lefties (and former lefties) of her era, has a Watergate fixation.
So, Thompson.
"He is a SuperStar lawyer who go the French guy Dominique Strauss-Kahn out of hot water."
I thought the woman being a proven liar and nut job who admitted making it up got Srauss-Kahn out of hot water?
Actually, she did. She said : “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.”
That's why. Those are statements of fact that go far beyond just stating one's lack of guilt.
IANAL but I don't see how those statements "go far beyond just stating one's lack of guilt." Those are "not guilty" statements - no "here is why" at all.
This is a show hearing, not a trial. at best, it is more like an investigation, and the witness can stop speaking whenever she wants.
Isn't what Lerner did equivalent to the part of a criminal trial where you plead not guilty?
No no 100 times no. A defendant is never sworn before entering his/her plea. Never. The court does not have the defendant stand raise his/her hand and then enter a plea of not guilty. A plea of not guilty is not a statement...it is not evidence. It's effect is to put every matter before the trier of fact and to compel the People to meet their burden of proof on each and every element of the charge. A lawyer can not ethically argue "my client pled not guilty you should use that as evidence he did not commit the offense."
On the other hand if the defendant is sworn and testifies "I did nothing wrong or illegal" the lawyer may argue that that is in fact the evidence since that statement was admitted into evidence. Cal crim 222 "Only the sworn testimony ....and admitted exhibits is evidence..."
Why didn't her attorney just read the statement? That would have been the smart thing to do.
That is the second best question in this matter.
She said : “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.”
And this is a classic reason why people should never talk. It is impossible that she has "not violated any IRS rules or regulations." Accordingly, she can be charged with lying to Congress (a ridiculous charge). The US criminal code has endless traps for those who talk. Eventually, you will say something that gets you into trouble, so you just should shut up.
"Why didn't her attorney just read the statement?"
-- The IRS has not been shown to be filled with luminaries.
Ann Althouse said...
Isn't what Lerner did equivalent to the part of a criminal trial where you plead not guilty?
That analogy makes me think the privilege should not be deemed waived.
This analysis does not consider her providing answers to the committee in proceedings prior to yesterday.
What does such a paragon of virtue have to fear? Testify, sistah, testify.
What does such a paragon of virtue have to fear? Testify, sistah, testify.
Why would you object to the government listening in on your converstations if you have nothing to hide?
phx: Those are "not guilty" statements - no "here is why" at all.
They are statements of fact to support a lack of guilt. What other facts could a person offer to support lack of guilt, that don't break down to "I didn't do it"?
Like others have pointed out, a plea is not testimony. It is not comparable to a statement of fact.
phx, the difference is that my private phone conversations are not the product of paid government work. Lois Lerner is paid by the government and apparently believes that she is being paid to hide what she does at work from the government that pays her. Kinda significant difference. The government does have a right to know whether she has something to hide about what the government pays her to do -- and so do taxpayers.
phx, the difference is that my private phone conversations are not the product of paid government work. Lois Lerner is paid by the government and apparently believes that she is being paid to hide what she does at work from the government that pays her. Kinda significant difference. The government does have a right to know whether she has something to hide about what the government pays her to do -- and so do taxpayers.
@Lyssa I thought a plea of not guilty IS a statement of fact. It can determined as true or not true.
"I am not guilty" certainly does seem to me a statment of fact.
1. If she doesn't testify and Congress determines she waived the 5th and still will not answer questions in a Congressional investigation - she can be cited, fines, and jailed for contempt of Congress. One of the few law enforcement tools the Constitution gives the Legislative Branch vs. the Executive.
2. Besides Lerner, the Oversight Panel is just as furious with Shulman and Steven Miller's "amnesia defense" - convinced both are lying. Congress can declare the two of them and any other SGT Schultz types claiming implausible ignorance in testimony, in contempt as well.
3. But the way these things go is that we have generally gone with a Special Prosecutor for investigations of malfeasance in the Executive Branch. It's better for separation of powers. As opposed to Congress, witnesses cannot claim executive privilege against a prosecutor appointed within the Executive Branch. And special prosecutors have far more resources and investigative tools and court powers they can command available only in the Executive itself.
4. The problems with Special Prosecutors have been in bowing to the "ideal" of independence and latitude - special prosecutors have acted like Kings. Taking their sweet time (Fitzgerald), far exceeding the scope both Congress and the Exec wanted under investigation (Kenneth Starr).
"He is a SuperStar lawyer who go the French guy Dominique Strauss-Kahn out of hot water."
You're thinking of Klaus Von Bulow. Reversal of Fortune, and all that.
"I am not guilty" certainly does seem to me a statment of fact.
Ha. What if you're proven guilty?
So, who ponied up for Lerner's Super Star Lawyer
Lois Lerner is paid by the government and apparently believes that she is being paid to hide what she does at work from the government that pays her.
Well, you can personally interpret someone's fifth amendies any way you choose, but I don't think it would be fair for congress to do that.
"Ha. What if you're proven guilty?"
Statements of fact can be true or not true.
Also, Whatsit has a valid point.
Her work is directly under the purview of the government.
Statements of fact = prepositions.
Statements of fact can be true or not true.
You are a lawyer. Admit it.
Actually, maybe the lawyers should
"bail me out" or let me know how I'm doing so far. I may be getting over my head.
I'm not arguing she retained her fifth amendies however. That's over my pay grade, and I'm good with the experts deciding.
Lois Lerner is paid by the government and apparently believes that she is being paid to hide what she does at work from the government that pays her.
I'd go a step further and suggest she apparently believes she should hide criminal activity that became a core function of her job, on the taxpayer's dime.
phx - What does taking the 5th after first claiming innocence have to do with wiretapping?
A different twist:
"I'm not guilty. I've done nothing wrong, because now I'm going to shut up."
This issue fascinates me. It brings out the wanna-be-lawyer in all of us. It also makes us look up to lawyers, because they have actually thought about such things, and that's a little unusual for anti-elitists like me. The Professor has said little about this case, noting that this is not her field of expertise. Glenn Reynolds has not yet opined. Fred Thompson and Alan Dershowitz have opined heavily, and lawyers and non-lawyers on this thread are coming in with serious questions and thoughts.
It's a celebration of what careful legal discussion can do! I'm not trying to be sarcastic here.
don’t think the answer is clear, as there are no cases quite like it. 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.
ricpic said...
phx - What does taking the 5th after first claiming innocence have to do with wiretapping?
Nothing.
She's above her pay grade, yet again.
She said : “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.”
Except for "I have done nothing wrong", which is a value judgement, those are all extremely broad claims of fact.
One of the big scandals in the IRS case is that the agency appears to have been baldly lying to Congress for an extended period of time. Why should Lerner get to baldly assert that she told the truth without the possibility of followup questions?
I can see a value based argument that people should not be able to waive their fifth amendment rights through carelessness or technical slipups. But this is a highly sophisticated witness, advised by a lawyer, making a prepared statement that involves many assertions about highly relevant facts. I don't see how you can let her off the hook and still require other people to testify.
It's a celebration of what careful legal discussion can do! I'm not trying to be sarcastic here.
Absolutely. It's a much higher level of discussion than "idiot" "moron". Reason and critical thinking are the best tools for exposing hypocrisy and lies.
If she had simply asserted "I have done nothing wrong, but on the advice of counsel I decline to testify", I would see it as an irrelevant preamble. But there's a big difference between "I have done nothing wrong" and "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." One is a mere protestation of innnocence, while the other is a broad ranged and specific denial of guilt.
the head of the union for IRS employees visited with POTUS in early 2010
I heard she visited the WH 118 times. Boyfriend?
phx, you're not an idiot or a moron. You're a maroon. I'm just a by-standing meta-commenter, unless I rescind that persona in order to call people idiots and morons and maroons.
Once again the GOP comspires to snatch defeat from the jaws of victory. Let's not talk about the IRS targetting groups based on politics. No, let's change the entire conversation to whether technical rules of evidence aplicable to a defendant in a criminal trial should or should not apply to a witness in a Congessional hearing. Yes indeed, that will surely rally the base and show the Democrats who paid more attention in law school.
Thompson is duly qualified to opine having played the NYC DA on Law and Order in the past. E.
Let's not talk about the IRS targeting groups based on politics. No, let's change the entire conversation to whether technical rules of evidence applicable to a defendant in a criminal trial should or should not apply to a witness in a Congressional hearing. Yes indeed, that will surely rally the base and show the Democrats who paid more attention in law school.
LOL. So true.
Ambrose, the point of this is to force Lerner back in the hot seat. It is a tactic to try and force her to get some answers. It's not just about lawyers being lawyers (I hope!)
You're a maroon
Only according to the state of Louisiana.
I have no idea about the actual legal arguments other than to observe that it's obviously not cut and dry but at the very least it's unorthodox. But given the inflammatory nature of this specific case it certainly seems like a poor choice on her part make a broad statement professing innocence and then invoke a right that prohibits any direct questioning about said innocence. For one thing it makes her seem evasive.
She was also wrong in asserting that the Fifth is there to protect the innocent.
"The Fifth Amendment privilege is not designed to protect the innocent. The innocent do not need protection from the truth (just from the IRS). The privilege is designed to protect the bedrock principle that the burden of proof is always on the government and, derivatively, that a person is never required to prove his innocence. (No surprise, I suppose, that an IRS official is unfamiliar with these foundational pillars of Anglo-American law.) And though Lerner, ever mindful of the cameras, went out of her way to avoid saying so, the Fifth Amendment privilege against self-incrimination can be asserted in good faith only if the person has reason to believe a truthful answer could tend to incriminate her.
http://www.nationalreview.com/corner/349110/fifth-obama-andrew-c-mccarthy
Government employees should be free to take take the 5th, except they are fired without pension if the do.
"The Fifth Amendment privilege against self-incrimination can be asserted in good faith only if the person has reason to believe a truthful answer could tend to incriminate her."
-- Eh, that's clumsy wording. The Fifth can be taken even if what you'll say couldn't do that. The example I've been using is admitting to being in a building a murder happened in. That information, alone, could not be used to convict you -- but you'd be well within your rights to plead the Fifth to not answer where you were that night.
Bring her back and lets see what happens.
EMD sez:
You're thinking of Klaus Von Bulow. Reversal of Fortune, and all that.
No, I am talking about the French presidential candidate Dominique Strauss-Khan! William Taylor III was his lawyer! He is Lois Lerner's lawyer!
CEO:
Yeah she was a liar, but he hired a Super Lawyer to defend him and NY did indict him.
I'm just a by-standing meta-commenter
In terms of meta commenting Matthew and I go head to head a lot here. It's interesting to see him struggle with this question in a nonideological manner.
so phx does give a fuck about people's civil rights if the people in question work for the government.
Matthew Sablan said...
"The Fifth Amendment privilege against self-incrimination can be asserted in good faith only if the person has reason to believe a truthful answer could tend to incriminate her."
-- Eh, that's clumsy wording. The Fifth can be taken even if what you'll say couldn't do that. The example I've been using is admitting to being in a building a murder happened in. That information, alone, could not be used to convict you -- but you'd be well within your rights to plead the Fifth to not answer where you were that night."
McCarthy is a former big time prosecutor. I'm going with his version all day long. Sorry Matthew.
Bob Ellison sez:
Glenn Reynolds has not yet opined. Fred Thompson and Alan Dershowitz...
I wanna know what Atticus Finch thinks!
Right, but in the context of this "The Fifth Amendment privilege is not designed to protect the innocent" it makes it sound like you cannot, in good faith, take the Fifth, when innocent.
I don't know about the legalities, but she clearly wants it both ways. She wants to sit on her high horse while disclaiming any knowledge of the horseshit that surrounds her......Her position is self serving and mockable. But by the time this is done, she will be presented as someone with the grace and courage to stand up to a vindictive government run amok. Helen Mirren and Meryl Streep will compete to play her in the movie version of her brave struggle. In her book, Lois will modestly minimize her courage. She'll claim that like so many modern women the example of Hillary gave her the strength to go on in the darkest days. Hillary, in turn, will name her Attorney General in her adminisration when she takes office.
Issa cant take it for granted that the rules and standards are not going to be tested by this new culture of prevaricators.
They think that they are the good guys... that the rules apply to bad people and not to the good innocent people like her.
She is "innocent" you see... these rules are not meant for her.
She is succinctly reflecting the Obama culture... I'm just along for the ride.
It really comes back to her making that statement, then trying to clam up on questioning with the 5.
That's the good faith part.
She walks out and says she wants the 5 from the beginning, that's good with me. She has her lawyer read a statement, that's good with me.
Otherwise you're left with one of those Law and Order spectacles.
And in fact--I remember one episode where the witness testified to what McCoy wanted him to say, but on cross invoked the 5 to avoid some embarrassing stuff and the judge tossed his whole testimony.
But that was television.
Matthew Sablan, you hint at the philosophical foundation of the right not to self-incriminate. That foundation has not been much in display. Most people just take it for granted. It's kinda like patent law. Why do we have this?
The right to refuse self-incrimination is a tool to limit the abuse of governmental power.
But what about the right to self-determine when that right applies? It seems to flow from the notion that only the witness can fairly make such a determination.
These are tools, though, not God-given rights (like those enumerated in the Declaration of Independence). Most religions assert that God will judge, based on truth, not on the judged assertion of rights granted here on earth.
so phx does give a fuck about people's civil rights if the people in question work for the government.
Personally, I couldn't care less if she dropped dead tomorrow, or if the government led her away in leg irons.
I'm interested in the use of nonideological tools in political struggle.
I didn't mean to suggest that Lerner doesn't have the right to take the 5th -- of course she does. I'm just pointing out the difference between the government snooping into a private citizen's private email and the government asking one of its employees what it was doing while working on the taxpayer's dime.
phx said...I'm interested in the use of nonideological tools in political struggle.
you didn't give a fuck about the use of nonideological tools in political struggle in the case of Nakoula. now you do.
Apologies to Ms. Lerner and her family. I would of course be distraught, as everyone here would be, if she were to drop dead tomorrow.
"But what about the right to self-determine when that right applies?"
-- That's the issue I have trouble with. To me, logically, you should be able to do what Lerner did. But, how do you make that workable in a trial without it -also- being prejudicial? Imagine you're crossing the defendant, they're answering everything, then, suddenly, they start pleading the Fifth.
That looks so bad for the defendant, even if they are innocent, that the use of their rights has opened a trap for them that they walked into.
On the other hand, in a case like Lerner's, it just makes it an even bigger circus to turn it off-and-on. So, maybe once you're testifying, we need to treat it differently.
you didn't give a fuck about the use of nonideological tools in political struggle in the case of Nakoula. now you do.
You don't know what the fuck you are talking about. Listen and learn.
"I'm interested in the use of nonideological tools in political struggle"
You mean like hand tools: a hammer, blow torch, or dental tools? What else is a nonideological tool?
phx said...
so phx does give a fuck about people's civil rights if the people in question work for the government.
Personally, I couldn't care less if she dropped dead tomorrow, or if the government led her away in leg irons.
I'm interested in the use of nonideological tools in political struggle."
Do us a favor huh? Kind of like flying flags--on the days when you're going to be this slightly bemused above it all commenter 'what fools these mortals be'...have one avatar. On the days you're going to be the left leaning (but still moderate!) commenter on the issues of the day, have another one.
Because trying to figure out where you are at any given time is more than I care to do.
Thanks.
You mean like hand tools: a hammer, blow torch, or dental tools? What else is a nonideological tool?
I didn't formulate that in the most artful way possible.
I'm intersted in the use of reason, good faith, and intuition (when reason and good faith fail) to make political determinations and arguments.
Probably still not the best formulation but I'm working on it.
"One of the big scandals in the IRS case is that the agency appears to have been baldly lying to Congress for an extended period of time. Why should Lerner get to baldly assert that she told the truth without the possibility of followup questions?"
Issa is now producing a series of e-mails to the IG asking for the results of his interminable study. The responses show a series of lies that the study is "being checked, not finished, etc" when in fact it had been finished and conclusion drawn months before the election.
Issa is too smart for these dummies. He is letting them tell lies and then producing evidence of the lie. The IG is now in trouble and has admitted his "investigation" was bogus. The coverup will not hold. Eventually, somebody will break and the cascade will begin.
Thompson and Andy McCarthy who convicted the "blind sheik" are real lawyers.
There’s an old scam criminal defendants occasionally pull. They give a bit of exculpatory direct testimony – just enough to gaze plaintively at the jurors and swear, cross-their-hearts, that they are pure as the driven snow. Then, just as the moment of submitting to cross-examination approaches, they announce that, even though they’re really, truly innocent, they just can’t answer the mean prosecutor’s questions – on advice of counsel, of course, in reliance on the Fifth Amendment.
Everyone familiar with this area of the law knows that this is contemptuous conduct. To testify, by definition, is to agree to submit to cross-examination. Once you begin to answer questions – i.e., to testify – you waive your right not to testify – i.e., not to answer questions.
In a trial, the judge does not put up with such shenanigans, which are, after all, a fraud on the process. The court rules that, by giving exculpatory testimony on direct examination, the defendant has waived his Fifth Amendment privilege; therefore, the defendant is directed to answer the prosecutor’s questions on cross-examination.
This is round 1.
http://www.powerlineblog.com/archives/2013/05/on-irc-section-1203.php
Intersting commentary on IRS employment administration at Powerline.
you mad that I remember your quote about not giving a fuck about Nakoula's civil rights? perhaps you didn't formulate that in the most artful way possible.
Because trying to figure out where you are at any given time is more than I care to do.
Mostly where I am is poking at you when your arguments are not arguments at all but foolish, nonreasoned or poorly reasoned rants.
I am not a lawyer and have absolutely zero understanding of the law generally and in this case specifically. I do read Volokh and from those discussions, as well as those among lawyers being quoted on this case, I have only this thought: Lawyers are like economists on less numerate; it is remarkable to me that the law, if it has any value at all is so fungible. Henry the 5th had the right approach.
you mad that I remember your quote about not giving a fuck about Nakoula's civil rights?
I have said time and again I will be accountable for anything I say on Althouse.
I'm intersted in the use of reason, good faith, and intuition (when reason and good faith fail) to make political determinations and arguments.
that's a description of Madison Man. you fool no one.
phx said...
Because trying to figure out where you are at any given time is more than I care to do.
Mostly where I am is poking at you when your arguments are not arguments at all but foolish, nonreasoned or poorly reasoned rants. "
Fine, but what does that have to do with your sudden shift back to being this above it all twat?
BTW: you not agreeing with me doesn't make anything I write poorl reasoned or a rant.
I rarely rant, leaving that for others.
Gotta go. Have a fun afternoon. Or whatever you're having at this time of day.
:)
Lerner validated that previous answers given were hers after asserting, under oath, that all prior testimony was truthful. Then she pleads the fifth.
What would happen if you testified under oath that statements given to the police were truthful, and then tried to turn around and assert your Miranda rights?
Matthew Sablan, interesting points.
Another thing lacking in on-the-record discussion of this thing: everyone knows Obama was at the heart of this. Kimberly Strassel wrote a great column about how the POTUS doesn't have to actually tell people what to do; he merely has to create a climate in which such abuses seem like obvious, good policies.
But no. Everyone who has run a big enterprise knows that Obama knew. The "I just read about it in the newspaper, like you" defense is laughable. This guy did it. Big Boy did it. He directed it; he told his top staff what to do. Only maroons and ignoranimuses would think otherwise.
I rarely rant, leaving that for others.
No, but often you do not use reason, and appear not to know it, IMO.
but often you do not use reason
I have said time and again I will be accountable for anything I say on Althouse.
yes maam. you are truly the face of reason and accountability.
"Being accountable for anything I say" means being accountable to reasoned analysis.
Like Ellison's comment, "This guy did it. Big Boy did it. He directed it; he told his top staff what to do." If I ever say anything like that I'm willing to defend it with reasoned analysis.
I'm not saying Ellison's not willing to. I am saying it it would be an interesting argument to make.
I should say "defend it against any reasoned analysis or attack."
yes maam.
That should be "Yes, sir."
Glen Filthie-
You're a racist. And I'm a sanctimonious moderately-tan rightie.
phx, I agree with you. My argument is basically this: how could he not know?
That is a presumption of guilt, of course. But that's sorta the way we work with authorities. The people in charge, unlike that guy Shulman yesterday, take responsibility, and assert that either they knew, or they should've known.
Obama runs away from that. He's like a character in Bil Keane's Family Circus: "Not me!" Obama denies responsibility and competence at the same time.
As others have noted saying "I am innocent" and "I did nothing wrong" are different things.
In the latter case there can often be legitimate differences of opinion as to what is "wrong" in a particular workplace.
George Costanza captures that dilemma very well here:
http://youtu.be/-RvNS7JfcMM
John Henry
The waiver issue seems a bit sticky. (The situation appears to be novel, which is why there's no clear consensus.) But it is quite clear that if Lerner were granted immunity, she'd have to open up, else face contempt. See lengthy discussion of immunity in U.S. v. North, 910 F.2d 843 ("The prohibition against compelled testimony is not absolute, however. Under the rule of Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), a grant of use immunity under 18 U.S.C. § 6002[1] enables the government to compel a witness's self-incriminating testimony. This is so because the statute prohibits the government both from using the immunized testimony itself and also from using any evidence derived directly or indirectly therefrom. ...) If the aim is ferreting out the truth rather than bringing criminal charges against one or another Administration official, immunity might be the better course.
William Tyroler: thanks for the analysis--much appreciate. it seems that the law is murky on this point.
phx said...
I'm intersted in the use of reason, good faith, and intuition (when reason and good faith fail) to make political determinations and arguments.
Right, and I'm sure it is just some odd coincidence that you've never been able to utter a word of criticism of Obama or Democrats here.
You big reasoner, you.
The Powerline price Marshall linked has huge implications. One of the metrics used to evaluate employees is how long a case takes. Anything over 270 days goes up the chain of command for approval. With all those targeted applications taking well over 9 months, layers of management in every region involved had to approve the process.
Right, and I'm sure it is just some odd coincidence that you've never been able to utter a word of criticism of Obama or Democrats here.
When did I ever say criticizing Obama or Dems is part of my agenda?
Is criticizing Repubs part of your agenda?
Yeah, I didn't think so.
The Powerline price Marshall linked has huge implications. One of the metrics used to evaluate employees is how long a case takes. Anything over 270 days goes up the chain of command for approval. With all those targeted applications taking well over 9 months, layers of management in every region involved had to approve the process.
Christy: Or, they just never were reported up (may be the defense.) I'm sure if I were a low-level employee acting rogue, I'd just never mention the cases.
Is criticizing Repubs part of your agenda?
McCain is a douchebag, especially on the Apple stuff.
Your turn.
It's a fool's errand to believe the politics can be separated from the underlying facts in a non-idealogical way. At the heart of this matter the crimes ( if any) stem from an idealogical predicate. Did she waive her 5th amendment rights? Maybe. Maybe not. That's for a court to decide. However her taking the 5th is damning beyond any spin. She isn't being accused of taking bribes. She is being accused of illegally using the power of the government to further a political goal under the color of law. Issa should have held in contempt and answer the questions. She has the right to reply to each question by taking the fifth. The optics will be horrible for the Administration and should be given the facts already known. Then Congress should appoint a special prosecutor.
McCain is a douchebag, especially on the Apple stuff.
Your turn.
OMG I'm so relieved to hear you say that. So is Obama.
Or...
McCain is a douchebag, especially on the Apple stuff.
Your turn.
Okay. I agree, McCain is a douchebag.
jk
@Matthew Sablan,
Christy: Or, they just never were reported up (may be the defense.) I'm sure if I were a low-level employee acting rogue, I'd just never mention the cases.
The reports upward are automated.
You work on cases in a computerized file. You open the file. If it is not closed, automatic notices are forwarded to superiors. The individual has no way to turn off those notices.
Thus, these notices of lateness would be seen at the very highest levels. Maybe the question is asked, "What are all these late files?" answer: "The Tea Party files." "Oh, okay. Carry on."
But this is how everyone at every level is evaluated: on finishing the files in a timely manner.
The automatic notification is the accountability portion.
Why would the Republicans throw her into this briar patch?
It'll shift the subject from the crimes the Democrats are covering up to the immediacy of a procedural argument that gives the appearance the Republicans are attacking a constitutional right.
And for what? They can't literally compel her to answer questions. Throwing her in jail would just make the distraction from the real issue that much crazier.
Huh, if it is automated, I don't know. Maybe they just said: "We're understaffed" or "We're waiting on responses from the organizations?"
Higher ups should have known, but I can see how they could have not.
Phx the Twat in full passive aggressive troll mode today I see.
You can almost set your clock by it.
Phx the Twat in full passive aggressive troll mode today I see.
As you have no capacity to reason beyond what a child can do it makes sense to label someone who does use reason "passive agressive," and then resort to the only tool you know: call me a twat.
You're so full of shit you can't tell your ass from your brains. But anytime you want to use reason let me know.
Mid-level managers were getting reports from below of cases taking too long. Congressmen were hitting top IRS management with constituent complaints that approvals were taking too long. Sounds to me as though Lois Lerner is smack in the middle of the info chain. How high up the ladder did those automatic reports go, I wonder?
Matthew Sablan: The software the IRS uses keeps track of time spent on cases, and on time elapsed since cases were opened. Managers and supervisors are automatically advised when cases exceed time allotted. There is no way managers and supervisors were unaware or that "rogue" employees were solely responsible for what happened.
Awww, simmer down Phx, get the sand out of your vagina.
Such language out the self proclaimed moderate! If you think you have demonstrated "reason" in your spamming of this thread, then I think its time to invest in a new dictionary.
You don't want people to think you are back to the full blown lefty cheerleader persona today do you?
How "immoderate" of you.
phx said...
When did I ever say criticizing Obama or Dems is part of my agenda?
Stupid shit: I never said it was.
Which of course is why you're answering this way.
You dumb cunt, you.
phx said...
When did I ever say criticizing Obama or Dems is part of my agenda?
Notice how when the silly little cunt's own statements show she is lying, she has to move the goal posts.
So I guess the silly little cunt makes all these "political determinations" that magically never involve criticizing any Democrat in any manner, shape, or form.
How nice.
phx said...
But anytime you want to use reason let me know.
You keep using the word "reason" as if you know what it really means.
You've already confessed on this site you're intellectually lazy, and ignorant of these topics.
So you should probably stop following up that admission with dumbass posts that you use "reason" to make political determinations and arguments.
You've a silly fucking goofball.
The 5th means what it needs to mean for the holy democrat party and their various apparatchiks.
You keep using the word "reason" as if you know what it really means.
What do YOU think reason is, Jay?
Here's my admittedly conspiratorial thought--the RINOs in the legislature were threatened every bit as were the Dems--I suspect if the RINOs knew what was going on they would remain silent. OK--putting my tinfoil hat back on.
@Matthew Sablan,
Huh, if it is automated, I don't know. Maybe they just said: "We're understaffed" or "We're waiting on responses from the organizations?"
Higher ups should have known, but I can see how they could have not.
Yeah, it really puts everyone in the Obama Administration a tough spot. They can either admit to criminal intent, or being so incompetent that they should never hold a job in govt again.
Evil, or drooling idiot. But no competent manager would not know.
Andrew McCarthy of National Review.
"Fred observes that committee chairman Darrell Issa had never seen anyone pull that stunt before, and neither had Fred. But as I noted in my post, it happens from time to time — which, of course, is why the “selectivity” rule that Fred describes exists. As it happens, I’ve not only seen it happen, I’ve prosecuted someone for doing it."
"Like Fred, I think Ms. Lerner has waived her privilege to refuse to answer questions. If the committee calls her back, and she persists in refusing to answer questions, I believe she would could properly be held in contempt of Congress."
http://www.nationalreview.com/corner/349141/lerner-too-clever-half-andrew-c-mccarthy
Evil or idiots? I know which way they hope we vote:
“We’re portrayed by Republicans as either being lying or idiots,” said one Obama administration official who was part of the Benghazi response. “It’s actually closer to us being idiots.”
Everyone seems to think that it's the democrats/Obama who wanted the IRS to audit the Tea Party, but I'm also sure that the Republican party would have went along with that idea. They have more to fear from the Tea Party than do the Democrats.
Fred Thompson would be on the fifth year of his presidency now. Shame that didn't happen.
Everyone seems to think that it's the democrats/Obama who wanted the IRS to audit the Tea Party, but I'm also sure that the Republican party would have went along with that idea. They have more to fear from the Tea Party than do the Democrats.
personally I doubt it. It's not that I believe certain establishment Republicans aren't capable of such Machiavellian machinations, rather I tend to believe that they wouldn't be that stupid. Not that I think they're particularly great geniuses either, just not that dumb and/or desperate yet.
phx said...
I rarely rant, leaving that for others.
No, but often you do not use reason, and appear not to know it, IMO."
LOL. phx, we're writing 1-2 sentence comments here, nothing more. With glaring exceptions (and we both know who some of those are) it's difficult--or even impossible--to determine the amount of reason that way.
Sigh. And here I thought we wuz pals. Budz even. Cut to the bone. To the bone!
phx said...
Phx the Twat in full passive aggressive troll mode today I see.
As you have no capacity to reason beyond what a child can do it makes sense to label someone who does use reason "passive agressive," and then resort to the only tool you know: call me a twat.
You're so full of shit you can't tell your ass from your brains. But anytime you want to use reason let me know."
Pretty sure PMJ has accomplished more using his brainpower than yo have with yours. Then again, we never know, since you won't say anything about yourself, only impugn the intelligence of others.
Roger J. said...
Here's my admittedly conspiratorial thought--the RINOs in the legislature were threatened every bit as were the Dems--I suspect if the RINOs knew what was going on they would remain silent. OK--putting my tinfoil hat back on.
5/23/13, 12:35 PM
It wouldn't surprise me in the least if some RINOs did know and kept quite. This may well be another aspect of the scandal to unfold. RINOs are afraid of the TEA Party. In that they have common cause with the democrats. The problem with assigning tin foil status to certain statements is that like a number of things that were previously thought to be tin-foil hat nonsense are turning out to be true. How many RINOs benefited from not having serious TEA Party challengers in last years primaries?
Like Ellison's comment, "This guy did it. Big Boy did it. He directed it; he told his top staff what to do." If I ever say anything like that I'm willing to defend it with reasoned analysis.
I'll say this:
It's IMMATERIAL if he did not know.
It was his job to know.
If he chose to not know, then he is no less culpable than if he covered it up.
By almost every account, Ken Lay had no clue what was going on with Enron's accounting (honestly, nobody actually knew much about it). Utterly clueless about everything.
Was he innocent? Hells no. He was the boss. It was his job to know.
Ditto Obama. Government too large for him to know this shit? Then shrink it post haste. But it doesn't excuse the President.
Hell, Bush was held PERSONALLY culpable by the same defenders for the actions of a small group of soldiers in Iraq in regards to Abu Gharib.
ndspinelli said...
AllenS, That's a great point!!"
Yeah, it's such a great point that Ann already made it last week.
I've seen a lot of reference to Lerner's comment about: "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."
However, Lerner did one more thing. After invoking the 5th, she received an inquiry:
Q: So it is your testimony that as far as your recollection, that is your response.
This in relation to her testimony response to the IG.
She answered that question:
That’s correct.
After invoking the 5th Amendment, she provided evidence to the hearing. It's not just her preamble, but her testimony after invoking the 5th. And though her answer is very short, it says that her comments to the IG is testimony available to the hearing.
Can someone both invoke the 5th Amendment and submit evidence?
Note, I heard about the IG testimony aspect this morning during an interview of my Congressman Poe. But there is more information at Legal Insurrection.
phx: "Reason and critical thinking are the best tools for exposing hypocrisy and lies."
The last election decisively disproves that hypothesis.
The entire AGW debate decisively disproves that hypothesis.
I could go on, but you get the gist.
Leland: "Can someone both invoke the 5th Amendment and submit evidence?"
Not if they are a Republican.
The last election decisively disproves that hypothesis.
The entire AGW debate decisively disproves that hypothesis.
I could go on, but you get the gist.
Oh, but they are the best tools. But you have to know how to reason and think critically for it to work.
Oh, but they are the best tools. But you have to know how to reason and think critically for it to work.
And most of America doesn't.
So in order to get anywhere, one must try other ways to get the attention of the uninformed and uncaring voter.
Patrick wrote:
Is Fred Thompson a lawyer?
Is the pope Catholic? Does a bear shit in the woods. Come on Patrick this is the internet, the place where curious people can look up stuff before they spout off.
"Isn't what Lerner did equivalent to the part of a criminal trial where you plead not guilty?
That analogy makes me think the privilege should not be deemed waived."
Except that a plea is not testimony.
So in order to get anywhere, one must try other ways to get the attention of the uninformed and uncaring voter.
I understand. Other people have made the same point to me. But I disagree.
Althouse wrote:
Isn't what Lerner did equivalent to the part of a criminal trial where you plead not guilty?
No. She wasn't asked to plead.
Since we're drawing analogies I'd say the situation was more like the defense phase of a trial gone bad. The defendant takes the stand and answers a self-serving question posed by her own counsel, then refuses to answer the cross examination. Contempt, pure and simple.
I understand. Other people have made the same point to me. But I disagree.
And you know why you disagree? It's not any sort of high mindedness on your pert, no matter what you might think.
The reason you don't agree is because you favor the side, the candidates and the policies that always have the benefit of being pushed by the so called mainstream media.
In other words--you and your side have never had to fight to get heard or to get the truth out.
Left leaning people don't get called racists (well, hardly ever). The don't get called hysterical or homophobic (like the way Ann does here when people don't agree with her).
It's something you're used to, like breathing air, there's no thought about it.
The reason you don't agree is because...
I see you don't need me to carry on an argument with me.
...you and your side have never had to fight to get heard or to get the truth out.
Look at me. I'm a much-despised "liberal" on Althouse. I've been here for years. What do you mean, I "never had to fight to get heard?" Are you serious?
When do you ever have to fight like this? Any idea how many different names I was called...today?
Left leaning people don't get called racists (well, hardly ever). The don't get called hysterical or homophobic (like the way Ann does here when people don't agree with her).
Horseshit.
phx said...
When do you ever have to fight like this? Any idea how many different names I was called...today?
People who show up only to insult and waste others time shouldn't whine about how they are treated in return.
People who show up only to insult and waste others time shouldn't whine about how they are treated in return.
Another rightie who eschews reason and argumentation in favor of empty proclamations.
How can you argue with someone who tells you what your motives are?
That kind of bullshit might work on you wife and children Marshal, but don't try to sell it to me.
I see there's nothing to you Marshal.
phx said...
I see there's nothing to you Marshal.
Nobody cares what trolls think.
Nobody cares what trolls think.
For someone who doesn't care what I think you sure spend a lot of time bidding for my attention.
Notice how I never address you? You always address me?
Never anything constructive. Just "me me me me phx!" And I waste YOUR time. Heh.
Fanboy.
Well, at least she has been suspended - (presumably) paid administrative leave. Know that they can't do it, but there should be a law about federal government employees invoking the 5th Amdt. concerning the performance of their jobs, and esp. to a Congressional oversight committee.
The interesting thing to me is that she plead the 5th Amdt. after stating that she had nothing to hide. She hadn't done anything wrong, broken any laws, etc. But, if that were true, then what is the grounds for her invocation? How could she incriminate herself w/o having done anything wrong? Without breaking any laws? Seems to be a bit illogical, and some courts have looked at such in determining whether the 5th Amdt. were available.
Still, I think that there is mounting evidence that she did, indeed, break the law. Section 1203 of the Restructuring and Reform Act of 1998, apparently mandates terminations of IRS employees who commit any of what are known in the Service as the “10 Deadly Sins”, and in particular (1203(b)(3)):
(b) Acts or Omissions.–The acts or omissions referred to under subsection (a) are–
(3) with respect to a taxpayer, taxpayer representative, or other employee of the Internal Revenue Service, the violation of–
(A) any right under the Constitution of the United States;... (other subsections of 1203 are also potentially applicable).
In this case, viewpoint discrimination by the IRS would seemingly be a fairly egregious violation of the 1st Amdt. AND, I would suggest that condoning such by her underlings (which she would likely be aware of through the reporting that others have mentioned above) would be sufficient.
phx said...
Notice how I never address you? You always address me
It is true your efforts are limited to baiting the less mature commenters. It's strange though you consider this a point in your favor. No doubt the difference is our standards. One correction though. I'm not addressing you, I'm addressing others.
Never anything constructive. Just "me me me me phx!" And I waste YOUR time. Heh.
Fanboy.
Most people grow out of the dimestore psychology eventually. Most of us did before we graduated, but maybe you're just a late bloomer in that as in so much else.
It's also sad you fall back on the same insult?. That is similar to your distraction efforts though. "Wait for the facts / quit beating a dead horse" seems to be your only play. Maybe you should consider moving on to a new blog. I'm sure it will take a while for everyone there to realize what a boring one trick pony you are.
I'm not addressing you, I'm addressing others.
Fine. As long as you aren't addressing me I'll feel free to ignore you.
Remember: you're a fanboy if you do address me.
phx said...
Fine. As long as you aren't addressing me I'll feel free to ignore you.
Since you ignore arguments in favor of distraction that won't be a change.
phx has morphed into Inga.
With all that implies
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