Lerner And Lo!

In the newest twist to the IRS saga, Politico says that Darrell Issa may regard Lois Lerner as having waived her 5th Amendment right by virtue of giving a statement and asserting certain facts before the Congressional Committee, yet refusing to answer questions. “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 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.” …

Issa dismissed her from the committee room once it became clear she wouldn’t answer questions. As the hearing wound down this afternoon, Issa kept the panel in recess instead of adjourning. The move allows him to recall Lerner without issuing a new subpoena.

But not every expert agreed that Lerner had waived her rights. According to Stan Brand she just cut a corner but didn’t enter the intersection.

“I don’t think a brief introductory preface to her formal invocation of the privilege is a waiver,” said Stan Brand, who was the general counsel for the House of Representatives from 1976 to 1983 and works on ethics issues.

Bryan Preston argues from an analysis of the articles filed by journalists after being called into the West Wing that there is evidence the White House has made a decision to throw Lerner to the dogs. Both Josh Marshall and Ezra Klein, journalists closely associated with the Obama administration, have recently given Lerner the thumbs down with remarkable synchronicity.

Josh Marshall (10:15a.m.): Lerner Must Go http://talkingpointsmemo.com/archives/2013/05/she_has_to_go.php … Ezra Klein (9:45a.m.): Heads should roll at IRS http://www.washingtonpost.com/blogs/wonkblog/wp/2013/05/22/yes-heads-should-roll-at-the-irs/

That would be Lerner’s head. Under that interpretation she is meant to be sacrificed to protect the President. That possible abandonment makes Lerner’s ‘accidental’ waiver of her 5th Amendment rights fraught with possibility. It opens up a new avenue Congress can pursue that the White House may not have reckoned with. Juliet Eilperin at the Washington Post says that in order for Issa to compel Lerner to testify a Contempt of Congress resolution upheld by a court is necessary to proceed.

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. …

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.

But the effort to going that route may be less onerous than granting her immunity to overcome the 5th. According to the Wikipedia entry for Kastigar vs the United States. “In a 5-2 decision (Justices Brennan and Rehnquist took no part in the consideration of the case), the Court held that the government can overcome a claim of Fifth Amendment privilege by granting a witness “use and derivative use” immunity in exchange for his testimony.” However their means for compelling testimony even under these circumstances is not unlimited. In the case considered:

Petitioners appeared but refused to answer questions, asserting their privilege against compulsory self-incrimination. They were brought before the District Court, and each persisted in his refusal to answer the grand jury’s questions, notwithstanding the grant of immunity. The court found both in contempt, and committed them to the custody of the Attorney General until either they answered the grand jury’s questions or the term of the grand jury expired.

Issa apparently aims to call her right back and if he considers her having waived the 5th she might just answer his questions.

Clearly with so much at stake the question is why Lerner’s lawyer did not keep her statement as brief as possible. He must have known her statement would leave the waiver door ajar by ever so much. One conceivable answer is that Lerner herself did not want to rule out appearing before Issa again and her lawyer crafted a way forward

Would Lerner have more options fudging the issue than unambiguously invoking the 5th? Remember she has to survive not just in the face of Congress, but the White House. If Lerner knew that Obama had made the decision to set her up to take the fall, ultimately her only way out is with Congress. Given those two choices Issa may not look so bad after all. She may be looking to take that way out without giving the obvious appearance of squealing.

What a day this has been
What a rare mood I’m in
Why it’s almost like taking the 5th
There’s a scowl on my face
For the whole ratty race
Why it’s almost like taking the 5th
All the daggers in life seems to be
Like a sharp knives that are pointing at me
And from the way that I feel
When the mask starts to peel
I would swear they were stalling,
I could swear I was falling
– It’s almost like taking the 5th.