Chairman Issa: Lerner waved 5th Amend Right!

[n david]

Bombshell!

House Oversight and Government Reform Committee Chairman Darrell Issa said embattled IRS official Lois Lerner waived her Fifth Amendment rights and will be hauled back to appear before his panel again.

The California Republican said Lerner’s Fifth Amendment right to avoid self-incrimination was voided when she gave an opening statement this morning denying any wrongdoing and professing pride in her government service

I missed the opening of the hearing, so I went back and watched her opening statement. I wondered how she could claim innocence and give a long statement, and then say she was going to invoke her 5th Amendment right.

I wasn't the only one.

Lerner’s decision to speak at all immediately triggered a dust-up among lawmakers who were confused about whether she gave up her Fifth Amendment protections when she made an opening statement.

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.

REP. TREY GOWDY (R-SC): Mr. Issa, Mr. Cummings just said we should run this like a courtroom, and I agree with him. She just testified. She just waived her Fifth Amendment right to privilege. You don't get to tell your side of the story and then not be subjected to cross examination. That's not the way it works. She waived her Fifth Amendment privilege by issuing an open statement. She ought to stand here and answer our questions.

LINK to Rep Gowdy quote

Of course, you have Elijah Cummings out their trying to carry Obama's water and cover for Lerner.

“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.”

He said he was not expecting that.

“I understand from her counsel that there was a plan to assert her Fifth Amendment rights,” he continued. “She went ahead and made a statement, so counsel let her effectively under the precedent, waive — so we now have someone who no longer has that ability.”

This is why Chairman Issa declared the hearing was in "recess," instead of adjourned at the end of the hearing.

She must testify. It's critical for her to do so. I wonder what the administration will do (IF anything) to protect her and keep her from testifying.

LINK

[Originalist]

Personally, I think she will simply refuse and gladly go to jail for her god, no hesitation. But if she was smart (impossible), she would already be begging for police protection of some kind. her life is not worth a plug nickle right now.

[n david]

I wonder if she was trying to hold out for immunity. "I'll testify if you agree not to charge me, etc if anything is found that proves laws were broken."

[MissBrattified]

I'm THRILLED that Issa decided that, but anyone with any working knowledge of American law already knew that she had waived her right. I don't understand why he had to consult anyone first.

I don't mind if Lerner gets immunity. I want her to answer questions.

[n david]

Originally Posted by MissBrattified

I'm THRILLED that Issa decided that, but anyone with any working knowledge of American law already knew that she had waived her right. I don't understand why he had to consult anyone first.

I don't mind if Lerner gets immunity. I want her to answer questions.

Me too. Give her what she wants, I want to know where this started and how far it goes.

This was done during an election...that's something we need to remember.

[Pressing-On]

Originally Posted by MissBrattified

I'm THRILLED that Issa decided that, but anyone with any working knowledge of American law already knew that she had waived her right. I don't understand why he had to consult anyone first.

I don't mind if Lerner gets immunity. I want her to answer questions.

Everything needs to be done above board. Issa is very good about that. With all of the conflict involved, he would do well to line it out legally.

Rep Elijah Cummings was saying, at the hearing, that this wasn't a federal court and that she had a right to plead the 5th. So, Issa will need to consult to move forward.

She testified before she gave her 5th Amendment plea. Therefore, I am thinking that is going to show she had waived her rights. We will see.

[n david]

Originally Posted by Pressing-On

Everything needs to be done above board. Issa is very good about that. With all of the conflict involved, he would do well to line it out legally.

Rep Elijah Cummings was saying, at the hearing, that this wasn't a federal court and that she had a right to plead the 5th. So, Issa will need to consult to move forward.

She testified before she gave her 5th Amendment plea. Therefore, I am thinking that is going to show she had waived her rights. We will see.

Does the committee meet again today or next week?

[MissBrattified]

Originally Posted by Pressing-On

Everything needs to be done above board. Issa is very good about that. With all of the conflict involved, he would do well to line it out legally.

That I understand, and I considered that he was simply exercising caution when I heard the audio yesterday. I'm sure he wants to make sure no testimony can get thrown out on a technicality. However, it seems like such a simple issue....

Rep Elijah Cummings was saying, at the hearing, that this wasn't a federal court and that she had a right to plead the 5th. So, Issa will need to consult to move forward.

She testified before she gave her 5th Amendment plea. Therefore, I am thinking that is going to show she had waived her rights. We will see.

Is the law applied differently at a congressional hearing than in a courtroom? I thought it was at least exercised very similarly.

Even if she had the right to plead the 5th, there are still rules that apply to how you can plead it. You can't pick and choose what you answer; you must plead the 5th for your whole testimony or you've waived your right.


"...The Supreme Court ruled that the privilege applies whether the witness is in a federal court or, under the incorporation doctrine of the Fourteenth Amendment, in a state court,[41] and whether the proceeding itself is criminal or civil.[42]" --Source

"...Keep in mind, however, that pleading the fifth applies to your entire testimony—this means that you cannot choose to answer some questions and refuse to answer others." --http://www.selfincrimination.org/pleadingthefifth.html


Forbes disagrees, and has this perspective:


"...Members of a congressional committee may ask a witness as many questions as they wish, and a witness may answer some, all or none – but the witness must respond to the questions individually.

This is how major congressional hearings have been conducted in the past.

Witnesses who plead the Fifth many times might defer or avoid legal perils, but they’re likely to undermine their credibility."

[odooley6985]

Maybe I am backwards in my thinking, but I dont believe these people should be able to hide behind the 5th.

[n david]

Originally Posted by odooley6985

Maybe I am backwards in my thinking, but I dont believe these people should be able to hide behind the 5th.

As much as I love and support the Bill of Rights, sometimes I think the same thing. Government officials should be required to answer questions regardless of self-incrimination. But since we're a nation of laws, those law must extend to everyone, including shady government officials.

Here's the text:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

I had to do some checking last night, because I decided to read the amendment again and was confused as to how she could plead the 5th since this is not a criminal case, and why she claimed it protected the innocent as well as the guilty. (Although she did refer to the DOJ's decision to open a criminal investigation to the IRS targeting.)

I found the Supreme Court has, in years past, given a broader definition to that line.

In Ohio v. Reiner, SCOTUS said, "a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances."

"Because our precedents dictate that the privilege protects the innocent as well as the guilty, and that the facts here are sufficient to sustain a claim of privilege, we grant the petition for certiorari and reverse."

"We have never held, as the Supreme Court of Ohio did, that the privilege is unavailable to those who claim innocence. To the contrary, we have emphasized that one of the Fifth Amendment's "basic functions . . . is to protect innocent men . . . `who otherwise might be ensnared by ambiguous circumstances.' " Grunewald v. United States, 353 U. S. 391, 421 (1957) (quoting Slochower v. Board of Higher Ed. of New York City, 350 U. S. 551, 557-558 (1956)) (emphasis in original). In Grunewald, we recognized that truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker's own mouth. 353 U. S., at 421-422."

This is what Lerner was saying yesterday; that the 5th Amendment protects the innocent also.

LINK