Did Lois Lerner Waive Her 5th Amendment Right?

At the start of her testimony before the House Oversight and Government Reform Committee, Lois Lerner, the head of the IRS facility that ran the targeting of government-disfavored Americans and groups of Americans, made a brief statement, asserted her 5th Amendment right not to testify against herself, and then refused to testify further.  Lerner said, in her statement,

On May 14th, the Treasury inspector general released a report finding that the Exempt Organizations field office in Cincinnati, Ohio used inappropriate criteria to identify for further review applications from organizations that planned to engage in political activity, which may mean that they did not qualify for tax exemption.

On that same day, the Department of Justice launched an investigation into the matters described in the inspector general’s report.  In addition, members of this committee have accused me of providing false information when I responded to questions about the IRS processing of applications for tax exemption.

I have not done anything wrong. I have not broken any laws. I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee.

The bulk of the rest of her testimony was a statement that her counsel had advised her to plead the fifth, and she was doing so.

The Volokh Conspiracy (the above link) polled a number of professors with criminal procedure expertise on the question, including a bunch who were experts on the 5th Amendment in particular; their collected response was summarized thusly:

Opinions were somewhat mixed, but I think it’s fair to say that the bulk of responders thought that Lerner had not actually testified because she gave no statements about the facts of what happened.  If that view is right, Lerner successfully invoked her 5th Amendment rights and cannot be called again.  But this was not a unanimous view, it was not based on the full transcript, and there are no cases that seem to be directly on point.  So it’s at least a somewhat open question.

I’m not a lawyer, nor do I play one on the radio.  However, I disagree with these guys.  One of the things on which Lerner stands accused, as she acknowledged in her statement, is giving false testimony.  Her statement that she did not provide false information is an explicit statement about a fact of what happened under that accusation; it seems to me that she waived her 5th Amendment right in this area.

Furthermore, her broader statement of having “not done anything wrong…” in the context of her prior statements, which tie this claim explicitly and exclusively to the subject of that hearing, strikes me also as a statement about the facts of what happened under the implied accusations, and so again she seems to have waived her right—this time broadly so, concerning all of the subjects of the hearing.  This statement isn’t even akin to a plea of “not guilty;” it’s a statement of “I didn’t do the things related to this case about which you intend to question me.”  A “not guilty” plea is only a statement that the accuser cannot prove his case—which is all a not guilty verdict means: the state did not prove its case.

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