As expected, Director of the IRS Exempt Organizations division Lois Lerner, pleaded the Fifth Amendment during her opening statement to the House Oversight and Government Reform Committee. Despite protests from some members of Congress, she effectively refused to answer any of the committee's questions. The question I have is why can those who have oversight (the committee) over employees (IRS) not question their employees. The Fifth Amendment seems inappropriate here since the Fifth Amendment reads, "nor shall be compelled in any criminal case to be a witness against himself." These are hearings, while legal proceedings, are not a criminal case yet. They are finding of facts. Lerner has not been indicted or charged with a crime yet! This truly seems out of place.
According to her opening statement, she said, "I have not done anything wrong. I have not broken any laws. I have not violated any IRS rules or regulations and have not provided false information to this or any other congressional committee."
Except this may just land her in more hot water here. As I pointed out yesterday, the Washington Post had given Ms. Lerner four Pinocchios because last year she provided "false or misleading information."
"In some ways, this is just scratching the surface of Lerner's misstatements and weasely wording when the revelations about the IRS's activities first came to light on May 10," the Washington Post wrote. "But, taken together, it's certainly enough to earn her four Pinocchios."
"While I would very much like to answer the committee's questions today," she added, "I've been advised by my counsel to assert my constitutional right not to testify or answer questions related to the subject matter of this hearing. After very careful consideration, I've decided to follow my counsel's advice and not testify or answer any of the questions today. Because I'm asserting my right not to testify, I know some people will assume I've done something wrong. I have not. One of the basic functions of the Fifth Amendment is to protect innocent individuals and that is the protection I'm invoking today. Thank you."
It is true that just because a person exercises their Fifth Amendment rights that does not make them guilty. However, when one considers her previous statements, then I do think it becomes reasonably suspicious that she is not willing to testify. Again, that suspicion does not make her guilty by default, but to claim that she has not provided false information is questionable at best, and worst case it's lying.
Chairman Darrell Issa (R-CA) expressed his regret that she decided to plead the Fifth. He then asked if she would at least verify that previous on-the-record statement were indeed hers. She did so.
She was then asked by Chairman Issa to reconsider answering the committee's questions, which her counsel advised her not to do.
As Issa sought to dismiss Lerner, Representative Trey Gowdy (R-SC) protested, pointing out the obvious:
"She just testified or waived her Fifth Amendment right to privilege. You don't get to tell your side of the story and not be subjected to cross-examination. That's not the way it works. She waived her right by issuing an opening state and ought to stand here and answer our questions."
Gowdy's statement brought applause from some. However, Issa went on to dismiss Lerner.
Well, I'm glad that Representative Gowdy took a stand and pointed out exactly what I was thinking as I watched. I'm wondering though if Issa was having her affirm her previous statements, in order to deal with them in light of her claims that she had not presented any false information to his committee previously. Time will tell.
UPDATE:Chairman Darrell Issa spoke with Politico:
“When I asked her her questions from the very beginning, I did so so she could assert her rights prior to any statement,” Issa told POLITICO. “She chose not to do so — so she waived.”
“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.”
“I understand from her counsel that there was a plan to assert her Fifth Amendment rights,” he continued. “She went ahead and made a statement, so counsel let her effectively under the precedent, waive — so we now have someone who no longer has that ability.”
Rachael Bade went on to report,
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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.
Legal experts are questioning whether Lerner’s Fifth Amendment protections dissolved once she began talking on Wednesday, as Issa argues.
“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.
He said the committee may ultimately pursue a contempt charge if Lerner continues to refuse to talk.