Did Lois Lerner waive her rights by giving opening statement?

[applecorped]

http://www.washingtonpost.com/blogs...aive-her-right-to-invoke-the-fifth-amendment/

"While Internal Revenue Service official Lois G. Lerner invoked the Fifth Amendment in her refusal to testify before Congress Wednesday, the fact that she gave a lengthy opening statement defending her innocence infuriated some lawmakers and prompted them to suggest she had inadvertently waived her right against self-incrimination.
In the course of her opening statement Lerner, the head of the IRS division on tax-exempt organizations, told members of the House Oversight and Government Reform Committee, ““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 congressional committee.”


C'mon legal eagles, tell me if this is accurate.

 

[triforcharity]

I'll have to find the case, but I read one where a defendant was being questioned by police, and they asked for a lawyer. However, the defendant continued talking to detectives after asking for a lawyer.

The person was convicted, but attempted to appeal on the grounds of the 5th Amendment. It got to the SCOTUS, and they did not overturn the lower courts ruling, keeping the conviction intact.

I'll have to see if I can find it.

 

[triforcharity]

I would assume it would be similar. However, I think the 5th Amendment can be invoked at any time.

 

[Cylinder]

I'm guessing what she probably waived is her right not to sit for the grilling.

 

[linusrichard]

The question is whether she testified. If she testified, she can't just give her testimony that tells what she wants to tell, without opening it up for questioning on the aspects she'd rather leave out. Testifying waives the Fifth Amendment privilege. (The exception would be if you testify on one subject, you would not have to answer questions on a completely different potentially incriminating subject. I don't think that's probably applicable here.)

If the Committee treats this as a valid Fifth Amendment invocation, then it should essentially ignore her entire statement. It's not testimony; it's not evidence. It's just a thing she said. People say things.

From her statement, it seems clear that she does not intend any of her statement to be considered as testimony. The few things she says in her defense are broad and conclusory. She doesn't say, "I never violated statute X or rule Y," or "I never engaged in illegal activity Z." She just says, "I didn't violate any laws, rules, or regulations." She doesn't say, "When I said A, I was telling the truth." She just says, "I haven't lied to a congressional committee." These statements don't look like testimony. They look like a general denial of guilt for public consumption as a preamble to what she's really doing, which is refusing to testify at all.

On the other hand, she made the statement under oath, which makes it a harder question.

 

[applecorped]

Round 2 coming up.

"While Congress continues to investigate the Internal Revenue Service profiling case, House Oversight and Government Reform committee Chairman Darrell Issa has determined that a top IRS official’s refusal to testify during a hearing Wednesday is invalid."


http://abcnews.go.com/blogs/politics/2013/05/darrell-issa-to-lois-lerner-assertion-of-fifth-invalid/

 

[AlBell]

Does anyone recall any recent 5th Amendment invoker that wasn't eventually found guilty of some crime? Ollie North. Mark Maguire.

http://www.nationaljournal.com/cong...ndment-has-been-used-before-congress-20130522

 

[Freddy]

I'm guessing what she probably waived is her right not to sit for the grilling.

She never had that right, though in congressional hearings it is often permitted. Only a criminal defendant has the right to make a blanket invocation and not testify at all. All others can be made to invoke as to individual questions, since presumably not every question will elicit an incriminating answer.

It isn't entirely clear what sort of proceeding a congressional hearing is, and that is why there are 5th Amendment experts on both sides of this question. My view is that as a witness under subpoena (in other words, an involuntary witness), she'd have to make specific assertions about specific allegations (as in specific lies, not lying in general) in order to waive her 5th Amendment rights as to that subject. But Alan Dershowitz is very confident that she waived her rights. It isn't a settled question, and I don't think the answer is obvious.

Even though I don't think she waived her rights, I think that either Lerner either ignored her attorney's advice, or he gave her bad advice. That opening statement does nothing to help her, because she's still pleading the ****** 5th Amendment. Saying, "but I totally did nothing wrong!" isn't going to be terribly convincing in that situation. And even if she didn't waive her rights (which I don't think she did), it at least makes it a close call. I don't see how any good lawyer would sign off on that, but again it is possible, perhaps even likely, that she went rogue and rejected her lawyer's advice.

 

[applecorped]

To be fair, guilt be association is still just that. Having said that.























































GUILTY! GUILTY! GUILTY!

 

[mikedenk]

Why can't a person just invoke the 5th amendment at specific times during testimony?

It seems fair that somebody should be able to testify on a broad subject, but invoke their 5thA right when faced with possibly incriminating questions.

 

[Freddy]

Why can't a person just invoke the 5th amendment at specific times during testimony?

It seems fair that somebody should be able to testify on a broad subject, but invoke their 5thA right when faced with possibly incriminating questions.

At least in a criminal trial, it would allow the defendant to have his cake and eat it too. If the defendant gives his version of events (he's free not to and it can't be held against him), the prosecutor gets to point out holes in it.

In a civil suit you can do that, at least if you are there under subpoena. But if you are a party then it can (and will) be held against you via an adverse inference, so if you did it you'd lose the case.

But a Congressional hearing is more like a grand jury investigation than a trial. There is no adverse party whose rights must be considered. So I think she could do in fact that. Which is why I don't think she's waived her rights. I think Prof. Derhowitz, being a criminal law expert, is thinking of this too much like a criminal proceeding, which it is not.

 

[RandFan]

IRS puts Lois Lerner on leave

The Internal Revenue Service official overseeing the unit that targeted conservative groups for several years beginning in the spring of 2010 has been placed on administrative leave, according to Congressional sources in both parties. Lois Lerner was the director of exempt organizations when the agency filtered applications for tax exempt status for words such as "patriot" and "tea party."

 

[sarge]

The most persuasive argument I've read is that she did not waive the 5th. The argument was that witnesses summoned before a grand jury or legislative body have a well settled right to selective invocation, and it is not even close.

Almost to a person, the experts believe that making an opening statement and then invoking the 5th is risky, however. Fortunately for her, Congress can not require her to testify of its own accord. They'd have to hold her in contempt and then get a real judge to agree with them.

Whether or not the Committee goes through with holding her in contempt is a political rather than a legal question. Republican legislators seemingly have an unlimited capacity for making poor decisions, so it is possible they might do so even though they would probably lose.

 

[applecorped]

Republican legislators seemingly have an unlimited capacity for making poor decisions, so it is possible they might do so even though they would probably lose.

Yes, Democrats are free from this.

 

[RandFan]

The most persuasive argument I've read is that she did not waive the 5th. The argument was that witnesses summoned before a grand jury or legislative body have a well settled right to selective invocation, and it is not even close.

Almost to a person, the experts believe that making an opening statement and then invoking the 5th is risky, however. Fortunately for her, Congress can not require her to testify of its own accord. They'd have to hold her in contempt and then get a real judge to agree with them.

Whether or not the Committee goes through with holding her in contempt is a political rather than a legal question. Republican legislators seemingly have an unlimited capacity for making poor decisions, so it is possible they might do so even though they would probably lose.

I know the details are different by Olly North comes to mind. He was granted immunity and then later prosecuted. The ACLU saved the day for him. The conviction was overturned due to the fact that witnesses against him could have been improperly influenced by his congressional testimony.

The Committee could grant her some sort of immunity like they did for North, I believe. Then again perhaps I'm completely out of my league, again.

FWIW

 

[Freddy]

The most persuasive argument I've read is that she did not waive the 5th. The argument was that witnesses summoned before a grand jury or legislative body have a well settled right to selective invocation, and it is not even close.

Almost to a person, the experts believe that making an opening statement and then invoking the 5th is risky, however. Fortunately for her, Congress can not require her to testify of its own accord. They'd have to hold her in contempt and then get a real judge to agree with them.

Whether or not the Committee goes through with holding her in contempt is a political rather than a legal question. Republican legislators seemingly have an unlimited capacity for making poor decisions, so it is possible they might do so even though they would probably lose.

I'm not sure how selective the invocation can be. Most of the experts I've read on this (I did read the one you mention) seemed to indicate that it is possible to waive privilege by testifying as to specific facts, but that Lerner was not nearly specific enough to waive her rights. So perhaps there are other rules or authorities that are at least arguably in play here.

 

[Freddy]

I know the details are different by Olly North comes to mind. He was granted immunity and then later prosecuted. The ACLU saved the day for him. The conviction was overturned due to the fact that witnesses against him could have been improperly influenced by his congressional testimony.

The Committee could grant her some sort of immunity like they did for North, I believe. Then again perhaps I'm completely out of my league, again.

FWIW

If they grant her immunity, then she has to spill her guts or she's in contempt. I think that's what they should do. It's by far the fastest way to get to the bottom of things.

 

[sarge]

Yes, Democrats are free from this.

Democrats are not running the current gaggle of politically motivated smear feasts. Come to think of it, Democrats have been responsible for comparatively few of our politically motivated witch hunts lately. If they get the opportunity to conduct some of their own witch hunts and choose to take advantage of the opportunity, I have no doubt they will make their fair share of stupid decisions as well.

 

[sarge]

I'm not sure how selective the invocation can be. Most of the experts I've read on this (I did read the one you mention) seemed to indicate that it is possible to waive privilege by testifying as to specific facts, but that Lerner was not nearly specific enough to waive her rights. So perhaps there are other rules or authorities that are at least arguably in play here.

I have no personal expertise. I formed an opinion after less than a half hour of google research.

I certainly understand why, in a criminal trial, a defendant can not preach his version while on the stand without having to face questions from the state about the subject.

On the other hand, a committee session is not a trial and, unlike a criminal dependent, a witness before Congress can not refuse to "take the stand". I can see how a witness might be permitted to invoke a right against self incrimination at any point. A committee hearing is more like a police interrogation than a trial, and a suspect in a police interrogation can stop talking at any point he chooses.

 

[Freddy]

Democrats are not running the current gaggle of politically motivated smear feasts. Come to think of it, Democrats have been responsible for comparatively few of our politically motivated witch hunts lately. If they get the opportunity to conduct some of their own witch hunts and choose to take advantage of the opportunity, I have no doubt they will make their fair share of stupid decisions as well.

The questioning may largely be political grandstanding, but there serious questions that need to be answered, and those involved need to be held accountable. The IG said he found no evidence of political motivation, but he also said that was based only on the unsworn statements of the people he interviewed. So it isn't as if that is a settled conclusion. And frankly, it isn't all that believable.

So yeah, people who are pointing the finger at Obama based on what we know at this point can safely be ignored, but that doesn't mean there's nothing there at all. It doesn't have to involve Obama to matter, and both the idiots and those whining about the idiots (as if this is surprising) are just distracting focus from the important questions.