DID SHE TAKE THE 5th OR NOT?

It is now a matter of public record that career bureaucrat Lois Lerner, director of the IRS tax-exempt organization division targeted conservative groups for extra scrutiny, leaving some of them on hold for as long as three years.

Lerner is the self-important bureaucrat that used the same kind of harassment tactics against Christians, subjecting them to inappropriate religious inquires when she headed up the Federal Election Commission (FEC).

“Lerner was appointed head of the FEC’s enforcement division in 1986 and stayed in that position until 2001.  In the late 1990s, the FEC launched an onerous investigation of the Christian Coalition, ultimately costing the organization hundreds of thousands of dollars and countless hours in lost work.  The investigation was notable because the FEC alleged that the Christian Coalition was coordinating issue advocacy expenditures with a number of candidates for office.  Aside from lacking proof this was happening, it was an open question whether the FEC had the authority to bring these charges.” (Weekly standard, May 20, 2013).

“Under the direction of Lois Lerner, the Federal Election Commission sued the Christian Coalition in the 1990s.  She harassed the Christian Coalition for three election cycles.  She lost her case. 
Before it was all over, she asked one conservative during the case if Pat Robertson prayed over him. (Gateway Pundit, May 22, 2013)

In trademark arrogant Obama style, Lerner refused to answer questions before the House Oversight and Government Reform Committee yesterday: She read an opening statement proclaiming her innocence, and then said “I will not answer any questions or testify today,” before Committee Chairman Darrell Issa shockingly dismissed her.

In spite of her arrogance and her public blindsiding of Issa’s committee, yesterday’s appearance should be recognized for what it was: Lois Lerner’s third straight defeat.  Lerner lost the case against the Christian Coalition; a decade later proved she had zero effect on the power of patriots in the Tea Party Movement and yesterday lost face in provable scandals that will follow her the rest of her days.
In other words, with all the might of the IRS at her fingertips, Lois Lerner is a loser.

The fact that she testified before asserting her fifth amendment rights (by reading an opening statement) may have voided that right.   The fact that she reiterated some of the same answers she gave the inspector general during his investigation prompted the panel’s chairman Darrell Issa (R-Calif.) to remark, “At this point, I believe you have not asserted your rights, but have effectively waived your rights.”

Now the big question is: Did she?
Like many legal questions, it depends on whom you ask. Stanley M. Brand, who has represented several clients that have faced congressional scrutiny, wrote in an e-mail he did not believe she provided “a waiver” for lawmakers to ask her questions by broaching the subject of her division’s activities before invoking the Fifth Amendment.

“The question would be whether she made statements about the factual substance of the subject, but courts will be loath to divest someone of their rights absent a clear and unequivocal waiver,” Brand wrote.

Brand raises a key point—in order to compel Lerner to testify, Congress would have to hold her in contempt.

In certain circumstances, Lerner’s detailed opening statement could be interpreted as a “subject matter waiver,” meaning she had made factual statements about the case that then opened the door for the committee to ask her for further details.

But to do that they would have to hold her in contempt, and get a judge to rule in favor of it.
Lerner’s lawyer, William W. Taylor, adamantly disagreed. “The law is clear that a witness does not waive her Fifth Amendment rights not to testify as to facts by asserting that she is innocent of the wrongdoing with which she is accused,” he wrote in an e-mail.

In an interview, Taylor said Lerner’s comments—which gave a thumbnail sketch of her division’s operation and the two investigations it has spurred in the offices of the Treasury inspector general and FBI — didn’t delve into the facts. “It simply said, ‘This is what you guys accused me of, I’m not guilty of it.’”

Still, Issa made it clear Wednesday afternoon he may summon Lerner again to respond to lawmakers’ inquiries. “I am looking into the possibility of re-calling her and insisting she answer questions in light of a waiver,” he told his colleagues. “For that reason, and with your understanding and indulgence, this hearing stands in recess, not adjourned.”

Taylor said he had not engaged in a discussion with Issa’s staff about a possible grant of limited immunity in exchange for Lerner testifying.

Regardless of the legal niceties surrounding Lerner’s invocation of the Fifth, Brand wrote that it’s always a good idea to keep one’s opening remarks short under such circumstances.

“As a matter of advice,” he wrote, “I advise witnesses to restrict themselves in asserting the privilege and reserve any additional comments to those outside the congressional proceeding.”