Did Lois Lerner waive her 5th Amendment rights yesterday?; Update: Dershowitz: Yep, she waived them

In an earlier post, I noted that there was some issue in Darrel Issa’s committee over whether or not Lois Lerner had asserted her 5th Amendment rights properly when she made an expansive and unanswered statement in which she asserted her innocence.

After her statement, Rep Trey Gowdy, a former federal prosecutor, stated in no uncertain terms that Lerner had in fact waived her rights, after which he received a round of applause:

Rep. Elijah Cummings, the ranking Democrat on the committee, naturally said she hadn’t. Issa was uncertain what to do so he dismissed Lerner subject to recall. Later this afternoon, via the Politico, Issa came around to Gowdy’s way of thinking and made the determination that Lerner had in fact waived her 5th Amendment rights and, thus, he will recall her.

Lois Lerner might win the legal battle but she’s prolonging the political  war.

Instead of simply taking the scorn of lawmakers for a day, repeatedly  invoking the Fifth Amendment to avoid self-incrimination, and then moving on,  she chose defiance.

And her bravado has prompted House Oversight and Government  Reform Committee Chairman Darrell Issa (R-Calif.) to say she has waived her  constitutional right to not comment.

Now, he plans to haul the director of the IRS’s tax-exempt department back to  the committee for questioning.

“When I asked her her questions from the very beginning, I did so so she  could assert her rights prior to any statement,” Issa told POLITICO. “She chose  not to do so — so she waived.”

Lerner shocked the committee room in the opening moments of Wednesday’s  hearing by delivering an opening statement denying any wrongdoing and professing  pride in her government service.

Did Lerner waive her rights?  It depends on who you ask.

Legal experts, however, say Issa’s argument that Lerner has waived her Fifth  Amendment rights might not be as strong as he suggests.

“I don’t think a brief introductory preface to her formal invocation of the  privilege is a waiver,” said Stan Brand, a Washington lawyer who was the general  counsel for the House of Representatives from 1976 to 1983.

For one, this is Congress, not a courtroom, says James Duane, a professor at  Regent University School of Law.

“[T]his woman was not the defendant,” he said, rejecting comparisons between  the committee room and a court room. “This is not a trial.”


But Paul Rothstein, a law professor at Georgetown University,  disagreed saying she “has run a very grave risk of having waived her right to refuse to testify on the details of things she has already generally talked  about.”

She “voluntarily talked about a lot of the same things then lawmakers wanted  to ask her about” in her opening statement.

“In that situation, when you voluntarily open up the subject they want to  inquire in to, and it’s all in the same proceeding, that does result in a court  criminal case … that would be a waiver,” he said in an interview with  POLITICO.

The most comprehensive analysis of Lerner’s actions I saw occurred on Larry Kudlow’s CNBC show. He asked former U.S. Attorney Joseph DiGenova and current Pennsylvania Governor Tom Corbett, also a former U.S. Attorney, what they thought of Ms. Lerner’s actions. No ambiguity here. They both emphatically say that she waived her 5th Amendment rights and will be forced to suffer the consequences one way or another.

Whether or not she waived her rights, it’s exceedingly doubtful that she’ll talk without some kind of an immunity deal. In any event, if Lerner is again brought before the committee and is forced to assert her 5th Amendment rights over and over and over again, the optics won’t be helpful for Obama. Stay tuned.

Update: (h/t Laddie_Blah_Blah) Via Newsmax, Alan Dershowitz agrees with those who say she waived her 5th Amendment rights:

Lois Lerner, the Internal Revenue Service’s embattled director of Exempt  Organizations, could be held in contempt of court and jailed for refusing to  testify before Congress, civil-rights lawyer Alan Dershowitz says.

“She’s in trouble. She can be held in contempt,” Dershowitz told “the Steve  Malzberg Show” on Newsmax TV.

“Congress . . . can actually hold you in contempt and put you in the  Congressional jail.”

Lerner, grilled Wednesday on the IRS’ targeting of  conservative organizations, invoked her Fifth Amendment right against  self-incrimination — but not before insisting “I have done nothing wrong.”

Her brief statement of innocence has opened a legal Pandora’s Box, according  to Dershowitz.

“You can’t simply make statements about a subject and then  plead the Fifth in response to questions about the very same subject,” the  renowned Harvard Law professor said.

“Once you open the door to an area  of inquiry, you have waived your Fifth Amendment right . . . you’ve waived your  self-incrimination right on that subject matter.”

He said the fact that  Lerner went ahead with her proclamation of could be considered malpractice on  the part of her attorney — although it’s possible she overruled the advice she received.

Listen to the audio here.


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