A day has passed since Lois Lerner, director of Exempt Organizations at the IRS, appeared before the House Oversight and Government Reform Committee, and this much is clear:
—She cannot be fired. As the Wall Street Journal’s James Taranto noted yesterday, the U.S. Supreme Court’s 1956 decision in Slochower v. Board of Higher Education struck down a provision in the New York City Charter that automatically terminated civil servants who utilize “the privilege against self-incrimination to avoid answering a question relating to his official conduct.” This extends her protections under the Fifth Amendment.
—Lerner may have waived her Fifth Amendment rights. Shortly after the session was convened, Lerner delivered an “opening statement” in which she asserted, “I have not done anything wrong, I have not broken any laws, I have not violated any IRS rules and regulations, and I have not provided false information to this or any other congressional committee.” The statement prompted Rep. Trey Gowdy, R-S.C., a former federal prosecutor to declare, “She just testified. She just waived her Fifth Amendment right to privilege. You don’t get to tell your side of the story and then not be subjected to cross-examination. That’s not the way it works.”
IRS, Lois Lerner, Fifth Amendment, House Oversight and Government Reform Committee, Darrell Issa
Although Chairman Darrell Issa, R-Calif., dismissed Lerner, at the end of the hearing he announced that the committee would take a recess, rather than adjourn, while he determined whether Lerner should be recalled before the panel. “Ms. Lerner may have waived her Fifth Amendment rights by addressing core issues in her opening statement and the authentication afterwards,” Issa said. “Although I excused Ms. Lerner subject to a recall, I am looking into the possibility of recalling her and insisting that she answer questions in light of a waiver.”
In its assessment of where this sticky wicket is headed, ABC News quotes both a Republican committee aide who said Lerner may now face potential contempt of Congress and a leading Democrat who he said he doubts she acted improperly.
The unnamed aide, told ABC:
Congress is respective when witnesses assert the Fifth, but if it’s not asserted properly, you’re not refusing to testify based on constitutional protection. Because you don’t want to answer certain questions, there’s a potential contempt of Congress.
Rep. Elijah Cummings, D-Md., the top Democrat on the committee, said he is in favor of looking into the issue of whether Lerner compromised her rights but voiced his doubts. “This is not a courtroom,” he said. “In a courtroom that might have been the case. It’s a legal question.” Cummings also asserted that Lerner was acting on advice of counsel and that he doubted her legal team would have permitted her to deliver a statement if it jeopardized her right to take the Fifth.
The question that no one seems to be asking is why Lerner didn’t ask her attorney to read her opening statement. Since the attorney would not have been invoking the Fifth, he would have been free to assert his client’s innocence without fear of reprisal or demands that she return to answer the questions she declined to answer yesterday.
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