House panel finds IRS official, Lerner, waived Fifth Amendment right

House panel finds IRS official waived Fifth Amendment right, can be forced to testify in targeting probe

A House Republican-led committee approved a resolution Friday declaring that high-ranking IRS official Lois Lerner waived her Fifth Amendment right against self-incrimination by delivering a statement before the committee in May.

Lerner used to oversee the IRS division that targeted groups for additional scrutiny when they applied for tax-exempt status. At a May 22 hearing, she invoked her right not to answer lawmakers' questions after declaring in an opening statement that she had done nothing wrong.

Members of the House Oversight and Government Reform Committee voted along party lines Friday morning, with 22 Republicans saying she waived the Fifth and 17 Democrats arguing she did not. Lerner remains under subpoena, and the committee believes it could bring the long-time IRS official back and compel her to testify.

Beyond the obvious import of this decision on the IRS scandal, it's interesting how this is yet another example of constitutional rights being conferred or removed at the whim of partisan perspective-- effectively meaning you have no constitutional rights if it crosses someone's left/right political agenda.

To be clear, I think Lerner effectively waived her right too. It's just interesting to me that those 17 democrats didn't think so.

reply to post by loam

she did truly waive her 5th amendment right, and i'm glad the ruling favored that, but you are right that it is sad to see elected officials voting on what benefits their party more, instead of what benefits americans more.

this should have been a black and white case.

reply to post by loam


Good on the ruling. It was a proper one. Now, they'll have to dig through a mile thick layer of Lawyers to get to her.

We may see action on this in about 18 months. I have some tiny bit of hope left.

Des

How silly; you only waive your 5th Amendment right when you choose to answer a specific question. Your 5th Amendment right is sort of like a buffet in that it is your right to pick and choose what you wish to answer to. The 5th Amendment is not an "all or nothing" right.

I hope they call her back to testify and I hope she invokes her 5th Amendment right again. What are they going to do about it? It's her constitutional right. No one will arrest her and there is no recourse the House panel has on this issue.

I am surprised that you are surprised by this. Haven't you been paying attention the last 20 years or so?

reply to post by LeatherNLace

How silly; you only waive your 5th Amendment right when you choose to answer a specific question. Your 5th Amendment right is sort of like a buffet in that it is your right to pick and choose what you wish to answer to. The 5th Amendment is not an "all or nothing" right. I hope they call her back to testify and I hope she invokes her 5th Amendment right again. What are they going to do about it? It's her constitutional right. No one will arrest her and there is no recourse the House panel has on this issue.

not correct. the 5th amendment does not work like that in this situation.

you cannot give testimony, then claim the 5th. one has the right to not incriminate themselves by testifying, however she did testify. if she were asked to testify, then simply said "i claim the 5th"; i would defend her 5th amendment right, but that is not what she did.

reply to post by LeatherNLace


I don't think you get to say under oath that you're innocent of any wrongdoing, didn’t violate any laws, didn’t violate any IRS regulations, and didn't provide any false testimony.......and then get to plead the 5th to avoid cross-examination.

I think this was about as wrong as it gets, personally. Another right watered down by creative interpretation to fit political needs of the moment.

Lets remove, for a moment, the target of the case which makes the outcome seem almost worth the means it took to achieve it.

This is saying that if I am accused of a crime and make a statement to profess my innocence in the beginning ...or at ANY point for that matter, I am then irrevocably tied to having to testify against myself? If circumstances or the perception I have of the questioning or investigation changes, I can't then invoke my 5th at a later point to shut down what has then become a different process than I first thought it to be?

That's what this is saying. What reasoning lay behind my perceptions isn't relevant and shouldn't matter. The 5th doesn't say it should or ever can. It's a right to end cooperation for fear of self incrimination at any point. Or...it used to be.

Now rights are conditional on how badly we want to get someone? Wasn't this the whole basis for screaming from the rooftops about how the Boston Bombers were persued and handled? Context based application of rights? ....This isn't done with swat teams and guns but with fine pens on high bond paper. So it's different?

reply to post by Wrabbit2000

this is an example of an implied waiver. she was never compelled to testify against herself, yet she did. she made statements under oath that can be used against her.

she waived the 5th by affirming that she understood her rights, but acted in a manner that waived the right. she was not under duress.

I think you can invoke at any time.

If the Committee knew she was going to invoke her privilege.

That should of been their first question.

Besides, her ramblings mean absolutely nothing in the big picture.

These Senators do not even have to power of arrest...

They are just trying to win re-election. They are just mugging for National TV time.

Bring Ms.Lois in front of a Federal Judge. Lock her up. I bet she will sing like a bird.

reply to post by Bob Sholtz

That doesn't matter from where I'm sitting. We're not talking about whether past statements can or cannot be used by some application of the 5th in a retroactive way or some other creative example. They're talking about brining her BACK to testify now and without option of the 5th as a protection against FUTURE testimony. Umm... That, I see a huge problem with.

Members of the House Oversight and Government Reform Committee voted along party lines Friday morning, with 22 Republicans saying she waived the Fifth and 17 Democrats arguing she did not. Lerner remains under subpoena, and the committee believes it could bring the long-time IRS official back and compel her to testify.

A person should be able to waive it in writing (forced or by free will, either way) and still withdraw that waiver by choice at any future time. That doesn't mean things already said should be magically unsaid...but compel future testimony? Say what?

* There IS a way to do this and she CAN be forced by penalty of 'contempt of Congress' (jail) to testify. They just can't stomach the political cost of the RIGHT and legal way to accomplish it. They can grant her immunity on her liability to what she saw, did or had done ...and then the 5th has no legal application or standing to be called at all. THAT is the LEGAL way to force it. They just backdoored the process and said they could because they said so as I'm reading it.

Originally posted by LeatherNLace


I hope they call her back to testify and I hope she invokes her 5th Amendment right again. What are they going to do about it?

This sums it up as the attitude that the Obama administration has about everything.
I mean, they are daily stripping us of our constitutional rights, and saying....
what are you going to do about it?

Originally posted by Bob Sholtz
reply to post by LeatherNLace

 

How silly; you only waive your 5th Amendment right when you choose to answer a specific question. Your 5th Amendment right is sort of like a buffet in that it is your right to pick and choose what you wish to answer to. The 5th Amendment is not an "all or nothing" right. I hope they call her back to testify and I hope she invokes her 5th Amendment right again. What are they going to do about it? It's her constitutional right. No one will arrest her and there is no recourse the House panel has on this issue.

not correct. the 5th amendment does not work like that in this situation.

you cannot give testimony, then claim the 5th. one has the right to not incriminate themselves by testifying, however she did testify. if she were asked to testify, then simply said "i claim the 5th"; i would defend her 5th amendment right, but that is not what she did.

I respectfully disagree with your interpretation of the 5th Amendment; which, by the way, makes no mention of "waiving one's right" or what constitutes a "waiver". Anyhow, it seems that, at best, some legal experts see this issue as gray area....but luckily for the citizens of the US, the constitution is not any shade of gray...it says what it means and it means what it says.

Did Ms. Lerner forfeit her Fifth Amendment protections?

Ms. Lerner, who was subpoenaed to testify, wasn’t taking the stand at a criminal trial. But it’s generally accepted that the same protections apply in congressional investigations.

To guard against distorted testimony, courts have held that you can’t selectively invoke the privilege by picking and choosing the details that you disclose.

But it’s never been clearly articulated exactly what constitutes a waiver of privileges in this situation, Andrew D. Leipold, a professor of criminal procedure at the University of Illinois College of Law, told Law Blog.

The same issue came up in 2002, when Bernard Ebbers, the former chief executive of WorldCom, rankled members of the House Financial Services Committee when he asserted his Fifth Amendment rights after declaring himself innocent of criminal conduct and defending his role at the company in brief prepared remarks. He was never charged with contempt of Congress.

But while it would have been safer for Ms. Lerner to not saying anything, it’s doubtful that Ms. Lerner went too far in her opening remarks, legal experts said.

Yale Kamisar, a retired University of Michigan law professor who is an expert on criminal procedure, said it didn’t seem that Ms. Lerner disclosed any incriminating facts that would demand further explanation.

“A denial is different than disclosing incriminating facts,” he said. “You ought to be able to make a general denial, and then say I don’t want to discuss it further,” he said.

blogs.wsj.com...

Originally posted by loam
reply to post by LeatherNLace

 

You don't get to say under path that you're innocent of any wrongdoing, didn’t violate any laws, didn’t violate any IRS regulations, and didn't provide any false testimony.......and then get to plead the 5th.

Well, except that Lerner did exactly that...and there is congressional precedent that says she was/is still protected by her 5th Amendment right (see the italicized paragraph quoted above).

reply to post by Wrabbit2000

That doesn't matter from where I'm sitting. We're not talking about whether past statements can or cannot be used by some application of the 5th in a retroactive way or some other creative example. They're talking about brining her BACK to testify now and without option of the 5th as a protection against FUTURE testimony. Umm... That, I see a huge problem with.

i kind of agree in a way to some of what you are saying. my preference would have been for those present to immediately claim (as they should have) that she waived the 5th.

she was previously questioned about IRS policy, and she chose to answer questions. in the video above, she was giving an opening statement claiming that she did not lie when she was previously questioned and did not break any laws regarding her conduct in the IRS. i do not think she can plead the 5th in regards to questioning about her previous statements. double jeopardy prevents someone from being tried for the same crime twice, but trials of this nature are going to last some time. it is still a single trial.

the 5th amendment doesn't go into much detail beyond saying that one cannot be compelled to give testimony against themselves. it's rather vague.

reply to post by LeatherNLace

I respectfully disagree with your interpretation of the 5th Amendment; which, by the way, makes no mention of "waiving one's right" or what constitutes a "waiver". Anyhow, it seems that, at best, some legal experts see this issue as gray area....but luckily for the citizens of the US, the constitution is not any shade of gray...it says what it means and it means what it says.

the difference between this case and the one you mentioned is that she chose to answer specific questions on IRS policy. she is accused of lying in her testimony on IRS policy.

nor shall be compelled in any criminal case to be a witness against himself

this is the part of the 5th amendment that is relevant. she was never compelled to give testimony, yet she gave it. specific answers to specific questions. one has the right to remain silent.