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Belmont Club

Lerner And Lo!

May 22nd, 2013 - 3:03 pm

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 … Ezra Klein (9:45a.m.): Heads should roll at 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.

The Three Conjectures at Amazon Kindle for $1.99

Storming the Castle at Amazon Kindle for $3.99

No Way In at Amazon Kindle $8.95, print $9.99

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All Comments   (18)
All Comments   (18)
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Just found something at POWERLINE. There is a Federal Statute, Section 1203 of the Restructuring and Reform Act of 1998. It MANDATES termination of any IRS employee who commits any of a list of acts. It is almost a roster of what they have been doing. Read the post, because the person citing the statute is a retired IRS Criminal Investigator who knows the details and has experience with it.

As in much of what is wrong with the country, there is a refusal to enforce the laws we already have.

TRYING to get the url posted here through the PJM firewall:

If it comes out in PJM's version of "Linear A"; go to POWERLINE 'On Section 1203.

Subotai Bahadur
1 year ago
1 year ago Link To Comment
Lerner is on record already at the FEC for grilling people about the contents of their prayers and attacking Christian coalitions with deposition after deposition after deposition. This poisonous b**** has left a record of doing the very thing in a different agency that the IRS agents were allegedly doing when she was in charge. My conclusion is that she's guilty.

The only place that she could work and get away with behavior like that is the Federal government. She'd have been let go long ago at a private company.
1 year ago
1 year ago Link To Comment
The 5th Amendment protects one against self-incrimination. Lerner cannot refuse to testify to evidence that will incriminate others.
1 year ago
1 year ago Link To Comment
What if those "suspects" had started decapitating the woman show in the picture? What then, send another woman?

As a 13 year old boy I came on a man being stabbed on Quezon bridge and drove off the attacker by pitching Coke bottles. I went right down to Plaza Miranda to call a cop, and as I recall, went on to have a bowl of noodles.

That was nothing brave. I'll bet that two generations ago ordinary boys and girls in ordinary neighborhoods would have done as much without thinking. What struck me most about the British crowd scene was even the Manobos and Mangyans would have acted differently.

I think the normal human reactions are being bred out of us. These instincts were formed by millions of years of natural selection. They are essential for our survival.

How has it come to this?
1 year ago
1 year ago Link To Comment
Reference my "something snaps and you get a reaction" comment. What happens if the next Islamic terrorist that does something gets hacked to death by the crowd? Is that good or bad?

And the reactions are not being bred out of us - the same process that allows Lerner to take the 5th ensures that the "good samaratin" will be charged with something or another - or simply sues down to his socks by the criminal. I have told the story of my brother's friend Ben here before - who fired back at a burglar who opened fire first, and lost his house in the resulting lawsuit.
1 year ago
1 year ago Link To Comment

I should have said they are going to "try" to breed reactions out of us. However they will not succeed. All this PC stuff will accomplish is cede control of the issue to the chavs. When people are terrified or maddened by anger then reason goes out the door.

But this is the consequence of denial. It pens up things that should be dealt with in a rational and measured way behind some huge dam. Yet inevitably the dam breaks one day because it is trying to hold back an underlying reality. And then who is charge of floodgates? The English Defense League.

And so it goes. When we paper over a problem we don't really make it go away. All that does is build up a head of steam which one day goes ka-boom.
1 year ago
1 year ago Link To Comment
You'd think that following the Boston bombing, pressure cookers would be illegal.
1 year ago
1 year ago Link To Comment
If a lizard appeared before a congressional committee, I'd be on his side.

Steven Miller was probably taking questions from congressmen (from both parties) who themselves had requested the IRS audit tea party groups.

It's like Barney Frank beating up bankers, and claiming all is well at Fanny and Freddy.

1 year ago
1 year ago Link To Comment
Ten yard penalty and loss of down for punny headline.
1 year ago
1 year ago Link To Comment
A little side question.

What would happen if House Oversight Committee does hold Lerner in contempt of congress and Holder announces the Justice department will not enforce the incarceration? Holder, himself, was already held in contempt of congress and refuses to comply.

1 year ago
1 year ago Link To Comment
On two unrelated topics:
1. Is the Oklahoma tornado now considered evidence of global warming or global cooling?
2. Is the decapitation of a British soldier outside of Woolwich barracks proof that the enemies within are more dangerous than the enemies without, or os it in fact a sign of hope that the police did respond with lethal force?
1 year ago
1 year ago Link To Comment
I heard Gary England, a famous OK City meterologist who I used to do storm spotting for, say that there has been cooling aloft and that results in a higher Delta T and thus more vigorous storms. He also poinetd out that the number of tormadoes is in fact lower than we have seen in recent years. Later on Fox News a meterologits said that the cooling over the past decade plus has resulted in a higher Delta T between upper and lower altitudes, including the ocoan. He also said it was a normal cycle and that we are seeing a 1950's type of situation.

As for the attack in England, I continue to wonder at what point something snaps in the public as a whole - or at least the non-passive portion of it - and we see a reaction - which ain't gonna be pretty.
1 year ago
1 year ago Link To Comment
Here is one lawyer who would not let a client make any kind of substantive statement about matters sub judice before claiming the privilege. Lerner's opening statement opens a large can of worms at the very least. On the other hand she might run out the clock while resiting a suit to declare her waiver.
1 year ago
1 year ago Link To Comment
Mel Brooks must have been in a similar mood when he composed "Springtime for Hitler" and "High Anxiety."

Can the claim of Immunity or the protection against self incrimination be considered waived if associated persons leak information on your behalf? In other words if the White House is giving deep background talks to Ezra Klein, especially if the ostensibly adverse information is really designed to enable you to take a retirement fall and stop the case from going higher, then how can any member of the administration decline to testify?

Perhaps Lerner took her advice from a noted Constitutional Law Adjunct Instructor who gave up their license under murky circumstances.

Is there a Lawyer in the house?
1 year ago
1 year ago Link To Comment
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