Lerner's Media Stunt Likely Waived Fifth Amendment Rights

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IRS Scandal

Lois Lerner, the head of the IRS tax-exempt division during the now infamous period of targeting conservatives, asserted her Fifth Amendment right against self-incrimination. Then she pulled a political stunt before the cameras--but doing so might have cost her the immunity that she might desperately need to stay out of federal prison.

The Constitution’s Fifth Amendment includes the Self-Incrimination Clause, providing that no one can be compelled to give testimony that could be used to convict them of committing a crime. Prosecutors have to convict their targeted suspects; you can’t make the defendant convict himself.

This Fifth Amendment right--so common that we call it “pleading the Fifth”—applies whenever you’re called to testify. It applies to civil proceedings, criminal proceedings, before board or commissions--or here, before Congress. You can assert it whenever you reasonably fear that if you answer the question, your words could be used as evidence of a crime.

Of course, this also means when someone asserts her Fifth Amendment right that she likely committed a crime. You’re presumed innocent in court; you’re not entitled to a presumption of innocence in the court of public opinion.

But a person can waive her Fifth Amendment right and choose to testify. As the Supreme Court first explained in Rogers v. U.S. in 1951, a defendant can open the door by choosing to speak about the facts for which she might later be charged. You cannot say what you want about the situation then refuse to answer any more questions.

Because it’s hard to know when that line has been crossed, if you’re put on the stand for something and want to plead the Fifth, your lawyer will tell you that you must answer questions about your name and where you live, but then for any additional questions you declare that you asserting the Fifth Amendment, and then you shut up. Every single question you’re asked from that point on, you say only that you are asserting the Fifth Amendment. Period.

Lerner either didn’t get that memo, or she thinks she’s smart enough to game the system. She read a prepared statement it which she asserted that (1) she’s innocent of any wrongdoing, (2) she didn’t violate any laws, and (3) she didn’t violate any IRS regulations.

Hmmm. That looks suspiciously like she made a statement pertaining to the facts of the situation. That could be a waiver. If so, she now has to testify. If she refuses, she can be held in contempt, which can send you to jail as surely as committing the crime that you didn’t want to talk about in the first place.

In a courtroom, a prosecutor would have raised the issue that she had waived her privilege against self-incrimination, and a judge would have ruled on the matter. Things work differently in Congress, and it’s unfortunately clear that Chairman Darrell Issa (who was a successful businessman, not a lawyer) wasn’t prepared for any of this, and let her get away.

Lerner obviously did this for the cameras. Watch any news show covering the IRS scandal, and you’ll get the video clip of Lerner claiming to be a paragon of purity. But that made-for-TV moment doesn’t work so well in legal settings.

Though Issa was caught flatfooted by this stunt, not sure how to respond when Rep. Trey Gowdy (R-SC)—a former prosecutor—immediately called out that Lerner had waived her rights, Issa later found his footing and said he might recall her to testify again because she may have waived her rights.

He should. Lerner could yet land in court. And we could yet see Lerner behind bars, one way or the other. Unless President Barack Obama gives her a pardon.

Breitbart News legal columnist Ken Klukowski is a fellow with the American Civil Rights Union and on faculty at Liberty University School of Law.  


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