IRS - Did Lois Lerner botch 5th Amendment assertion.

[Celldweller]

http://abcnews.go.com/blogs/politics/2013/05/irs-lois-lerner-takes-fifth-shuns-congress/

Lois Lerner started off her appearance by proclaiming her innocence and then Rep(tilian)Trey Gowdy SC said:

“She just testified. She just waived her Fifth Amendment right to privilege,” Rep. Trey Gowdy, R-S.C., a former federal prosecutor, said, “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 right to Fifth Amendment privilege by issuing and opening statement. She ought to stand here and answer our questions.”
Members of the public watching in the committee room applauded enthusiastically.

Anyone know how the whole "plead the fifth" thing works and what else you're allowed to say?

[Dreamer Tatum]

1. Too bad - she blew it.

You can't defend yourself and then invoke the 5th.

[Celldweller]

4. this is how it works...

They want to get people under oath.

They set perjury traps.

Once you've put yourself in hot water and are facing actual prison time you start to rat out your superiors.

Issa couldn't give a rat's ass about Lerner. He wants the mythical phone conversation between Obama and Tim Geithner encouraging him to give suggestions to IRS management to make life miserable for TP and CON groups.

If/When he can't find any evidence of that he will settle for prosecuting/career ending mid level folks.

[Dreamer Tatum]

10. No one said she perjured herself. She simply began to tesify, and then invoked the Fifth.

Prosecutors would say that is a no-no.

[Celldweller]

15. No, I'm speaking in general terms...

IRS-gate, Benghazi-gate.... they're hunting for bigger game and these people are just part of the fishing trip.

[Dreamer Tatum]

16. Then she should have kept her mouth shut, ya think? nt

[MNBrewer]

26. You can invoke the 5th at any time.

Even mid-sentence.

[Dreamer Tatum]

27. But it has no teeth. nt

[MNBrewer]

29. What has no teeth? Congress? Daryl Issa?

[Dreamer Tatum]

30. Nevermind. Prosecutors have said that once one testifies, the 5th is waived.

but you believe whatever you like.

[MNBrewer]

32. What prosecutors? They hold jurisdiction in this case?

I don't think so.

[Dreamer Tatum]

33. I think you should do some reading. nt

[MNBrewer]

36. I have

And my reading indicated that you can invoke the 5th at any time.

You said "Prosecutors have said". I asked which prosecutors for two reasons. 1. I see no reason why a prosecutor would have legal jurisdiction over the matter, rather than, say, a judge or prevailing law. 2. Why would prosecutors be involved in this matter if there are no criminal charges?

[NutmegYankee]

37. And how are they going to waive it? Apply torture?

You decide to stop talking, you decide to stop talking.

[Dreamer Tatum]

38. Jesus H. Christ.

YES, they can torture her.

FFS forget it.

[jberryhill]

42. It's not a trial

This is an investigative interrogation. Just like being questioned by police, she can stop talking and invoke her 5th Amendment rights at any time.

OF COURSE "Prosecutors" have said such a thing, because testifying in one's own defense on the stand at a trial is a different kettle of fish. By taking the stand at your trial, you have agreed to be cross examined.

This is not a trial. She is not on trial.

If they want answers out of her, they can grant immunity. That's what's going on here.

[MNBrewer]

50. What prosecutors, again?

[DevonRex]

65. But she was not in a court of any kind. Those rules don't apply.

There is no judge, no prosecutor, no jury. Just some representatives asking questions. She read a statement then took the 5th for their questions.

[pnwmom]

58. There has been conflicting case law on that point,

but Issa could easily solve this by giving her criminal immunity.

[Dreamer Tatum]

60. She needn't talk. She can't be FORCED.

At issue are the consequences of not talking. That is all.

She can be granted immunity, but of course she cannot be compelled to speak.

[pnwmom]

61. Couldn't she be charged under contempt of congress

if she refused to speak after being given immunity?

There are all kinds of witnesses who have given compelled testimony. Why should she be the exception?

[aristocles]

2. She's in contempt of Congress.

Wait. We all are.

[unblock]

3. i'm not a lawyer but i don't understand why you can't change your mind.

imagine you start talking, then your lawyer shows up, sorry, i was stuck in traffic, we're not answering any more questions, we're taking the fifth.

i'm not sure what great principle of jurisprudence is being upheld by saying that once you start talking you can be compelled to keep talking.

[COLGATE4]

5. The previous poster is correct - you

can't start testifying and then change your mind and assert your Fifth Amendment privilege. (What you're talking about is the Miranda right which can be exercised at any point). She blew it and should now be required to testify.

[1StrongBlackMan]

9. Not true ...

This is a congressional hearing ... not a trial or grand-jury appearance AND erner is not a defendant but rather a witness. When I get home, I'll cite to case law if you wish.

[COLGATE4]

11. I'd like to see the cite to that-

[1StrongBlackMan]

17. When I get home ...

Daughter graduates tonight ... so book-mark this for later viewing.

[1StrongBlackMan]

34. Not case law; but ...

Here's an artice (Opinion):

Gowdy's outraged objection was met with applause in the courtroom. But James Duane, a Fifth Amendment expert at Regent University, says Gowdy's claim was "extremely imaginative" but "mistaken."


Had this been an actual criminal trial, in an actual courtroom, and had Lerner been an actual defendant, then yes, it would not have been permissible for her to testify in her own defense and then refuse cross-examination on Fifth Amendment grounds. But a congressional hearing is not a criminal trial in two important ways, Duane tells Daily Intelligencer.


First, unlike in a trial, where she could choose to take the stand or not, Lerner had no choice but to appear before the committee. Second, in a trial there would be a justifiable concern about compromising a judge or jury by providing them with "selective, partial presentation of the facts." But Congress is merely pursuing information as part of an investigation, not making a definitive ruling on Lerner's guilt or innocence.


http://nymag.com/daily/intelligencer/2013/05/lerner-gowdy-waive-right-5th-amendment-irs.html

But if you need more, I'll pull the case law.

[Celldweller]

48. A little more background and clarity

Last edited Wed May 22, 2013, 08:13 PM - Edit history (1)

Evidently before the hearing started Rep Cummings agreed with Republican lawmakers that the hearing be run "like a court room".

That is why Rep Gowdy noted "the agreement with Rep Cummings" when he asserted that Lerner had lost 5th Amendment protection.



So... bottom line?

Gowdy knew that Lerner wasn't breaking any law but he sure was GRANDSTANDING. He probably called his DC office during the break to see how his political donations were progressing.

[jberryhill]

39. It's not a trial

[unblock]

22. this is what i thought -- that there's a difference between an investigation and a trial

i'm just imagining the police accuse you of being a criminal, you instinctively say, "hey, i'm a law-abiding citizen!" and then they say, "HA! now you're compelled to answer questions about ANY crime we feel like asking you about because we're just exploring your "law-abiding" statement!"

I agree there's something different about, say, testifying in your own defense at a trial, then refusing to be cross-examined based on the fifth amendment.

[MNBrewer]

28. You can stop and invoke the 5th at any time

even mid-sentence.

[jberryhill]

43. Think about what you are saying

The "Miranda right" IS a Fifth Amendment right.

One cannot be compelled to be a witness against oneself at a trial - that's the hub of the 5th. That is why a criminal defendant cannot be compelled to take the stand. If a criminal defendant takes the stand at trial, they have waived the 5th in its entirety. However, a criminal defendant can only do so voluntarily.

She is not voluntarily before this committee. She was summoned and compelled to appear. It is a custodial interrogation, just like the Miranda situation.

Congress can compel her appearance, which is very different from a criminal trial situation in which the defendant cannot be compelled to take the stand. But they cannot make her answer questions.

The very nature of the beast is different from a trial. Let's say you were testifying to some committee about, oh, dairy subsidies or some trivia, and a Congresscritter asked, out of the blue, "Did you smoke weed last month?"

You are saying that you'd have to answer that question truthfully and expose yourself to prosecution? Really?

The disconnect you are missing is that this is not her trial. She is being compelled to appear and she is being asked questions, just like a custodial interrogation.

[geek tragedy]

8. Can't use it as a sword and a shield

If you decide to shut up, you need to shut up. If you decide to talk, you talk.

You don't get to make self-serving statements and then refuse to answer questions about those statements or their subject matter.

[MNBrewer]

31. Sure as hell can!

[geek tragedy]

40. As a witness at a Congressional committee like this, probably.

At one's own trial, notsomuch.

[jberryhill]

41. Which is the point

This is an investigative interrogation. She can clam up at any time she chooses.

[MNBrewer]

45. Yep.

She can, and did.

[clarice]

54. correct. nt

[1StrongBlackMan]

6. Erm ...

Back to law school for you Mr. Former Federal Prosecutor (which probaby explains the "former" part) ...

First, this hearing is NOT a trial or a grand-jury... different rules apply.

Secondly (and relatedly) because Lerner is a witness (not the accused, as in a trial), she is free to pick and choose what questions she is willing to answer.

Lastly, because this is not a trial or a grand jury, she is free to invoke the 5th at any time.

[elleng]

13. Thanks, Man.

[My Pet Goat]

19. Yes, basically it is just a point of order issue....

that the chairperson had discretion to address (or not). It is not a legal waiver of constitutional rights...yikes!

[Celldweller]

23. Comment from Rep. Cummings D-MD

Maryland Rep. Elijah Cummings, the top Democrat on the Oversight committee, said he didn’t think Lerner waived her fifth amendment protections.

“I don’t think her counsel would have allowed her to give a statement knowing that the very purpose of him being here — for her to assert her fifth amendment rights — would be damaged if she made a statement,” he told reporters.

[pnwmom]

59. And they could give her immunity and compel her testimony.

But they don't want to do that because her testimony won't implicate the President and they want him to look bad.

[1StrongBlackMan]

66. I suspect ...

you are correct.

Isn't it amazing how quiet Rove is these days? Has he DEMANDED a full investigation of the IRS?

[SoCalDem]

7. She should have said the first part to the press BEFORE she went to congress

and once there she should have invoked & when walked.. I think she said too much too soon..and may regret it.

[elleng]

12. No; she answered no questions.

[JaneyVee]

14. Isn't a Federal court. It's a congressional hearing.

[Celldweller]

18. does anyone know if she was under oath? nt

[1StrongBlackMan]

21. Most congressional testimony ...

is taken under oath. I can't think of a instance when it is not.

[Cooley Hurd]

24. I can - Bush/Cheney refused to be put under oath re: 9/11

http://en.wikipedia.org/wiki/9/11_Commission#Officials_called_to_testify

...but, in fairness, this was a commission and not congress.

[1StrongBlackMan]

35. Yeah ...

You're right.

And thinking about it, I can think of a couple other instances, as well.

[B2G]

44. I saw her being sworn in. nt

[1StrongBlackMan]

20. Bingo. n/t

[rl6214]

25. He can whine and bitch as much as he wants, he can't make her talk

[librechik]

46. Issa didn't balk--he allowed it. He's the decider

Gowdy was ruled out.

[B2G]

47. they will recall her

Just wait and see.

[1StrongBlackMan]

49. And her response will likely be the same. n/t

[Roland99]

52. So why would Issa so willingly accept that and not have her questioned? Is he, oh, hiding something?

or wanting to hide something??

[librechik]

53. I believe they're starting to figure out that this bites them in the ass.

he might be eager to have it disappear, actually.

[Puzzledtraveller]

51. She did, she should have never said anything.

[Savannahmann]

55. No. Not according to the Supreme Court mandated Miranda Warning.

From usconstitution.net.

The following is a minimal Miranda warning, as outlined in the Miranda v Arizona case.


You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.


The following is a much more verbose Miranda warning, designed to cover all bases that a detainee might encounter while in police custody. A detainee may be asked to sign a statement acknowledging the following.


You have the right to remain silent and refuse to answer questions. Do you understand?
Anything you do say may be used against you in a court of law. Do you understand?
You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. Do you understand?
If you cannot afford an attorney, one will be appointed for you before any questioning if you wish. Do you understand?
If you decide to answer questions now without an attorney present you will still have the right to stop answering at any time until you talk to an attorney. Do you understand?
Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?

[Puzzledtraveller]

56. I don't think that applys here

[Savannahmann]

57. The 5th Always applies.

Testimony in Congress is under oath. That means that you can be charged for lying to congress. Contempt for Congress is the usual charge. Also your testimony can be used against you. It isn't just a political side show, it is serious regarding your liberty and freedoms.

You can always shut the hell up. If you start talking, and realize that you are getting yourself in trouble, you can stop. The only way to get you legally to start again, is to offer you immunity from prosecution, otherwise there is no way to legally compel you to speak against your own interests. When someone is given such immunity, that is the only case where you do not have the 5th Amendment protections, because it doesn't apply in that case. You are incapable of testifying against yourself, you have immunity.

[LanternWaste]

62. Can anyone cite (no editorial) actual case law which prohibits invoking the 5th in a congressional..

Can anyone cite (no editorial) actual case law which prohibits invoking the 5th in a congressional hearing after a statement has been made?



If memory serves me correctly, Lililan Hellman (McCarthy Hearing) Oliver North (Iran-Contra Hearings) and Jack Abramoff (Amerindian Lobbying Hearings) all invoked the 5th *after* giving either deposition or testimony... both without consequence in and of itself, regardless of the outcomes.

[W_HAMILTON]

63. It happens all the time.

It's only an issue now because Republicans are busy playing their manufactured outrage cards.

I commend you on your non-tabloid memory. The first testimony that came to my mind involving someone that made a statement before Congress and then invoked their Fifth Amendment rights afterwards during the same congressional hearing was Tareq Salahi (the husband from the "White House Party Crashers&quot .

You can watch the testimony here: http://www.c-spanvideo.org/program/291498-1

As a side note, there are a couple of questions sprinkled in there that the Salahis chose to answer, while still invoking their Fifth Amendment rights for most questions asked.

[DevonRex]

64. She wasn't in a court of law so she did not blow it. The legislators

need to go back to law school. Or just look around and realize where they are. Not a courtroom.

[Savannahmann]

67. Testimony under oath still carries potential for criminal charges

Contempt of Congress is a criminal charge. Lying under oath to Congress is a criminal charge. Additionally, if you admit to wrongdoing while under oath at a congressional hearing, you could be charged based upon your testimony.

Which is why the 5th Amendment applies, not just when speaking to police, or prosecutes. But always applies whenever someone in authority, defined as someone who can compel you to appear and answer questions.

[DirkGently]

68. No. It doesn't work that way. You can invoke the 5th at any time.

She made a (self-serving) opening statement, and then refused to answer questions, as is her right. She could have let them ask questions, and decided to answer some and not others if she'd chosen.

There's no "gotcha, no take-backsies" to the 5th Amendment.