Thursday, May 23, 2013

Waiving the Fifth

Yesterday most of us eagerly awaited Lois Lerner's arrival at the House Oversight hearing regarding the IRS Scandal, knowing she planned to plead the fifth. We knew she would take the coward's way out, but I think it was "nice" for many of us to put a face to our anger. Chairman Issa asked if she wished to make an opening statement, and she did. After giving us a brief history of her career as a civil servant, she said this:

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. And while I would very much like to answer the committee’s questions today, 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 that some people will assume that 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.

Beautiful opening statement, but she unintentionally waived her fifth amendment right against self-incrimination. Congressman Trey Gowdy from South Carolina was the first to bring it up, saying she can't testify and not be subject to cross-examination. Issa wasn't too sure, but it took him a few hours to come around. A lot of people were confused or in disagreement, so let me explain this.

When you plead the fifth, that means you don't speak. As Congressman Gowdy said on Fox News this morning, you don't even say "Good Morning" or state your name. When Issa asked if she wanted to give an opening statement her response should have been, "I plead the fifth." Instead she testified to facts on the subject in which she had been subpoenaed. Whether that was mentioning the IG report or claiming her innocence, it doesn't really matter. Once you give testimony and make statements of fact, you can't plead the fifth. After pleading the fifth, she once again said she did nothing wrong. If the testimony prior didn't waive it, that would have done it.

Let's put it this way. There is no gray area. Either you testify or you don't. Either you give full disclosure or you keep it to yourself. You can not start speaking on a subject and then clam up. You either speak or you keep your mouth shut. She chose to speak, therefore she must continue speaking. She was dismissed subject to recall and the hearing is in recess, so she can't re-plead without risking being held in contempt. I have more faith in House Republicans than the ones in the Senate. If Darrell Issa can hold Eric Holder in contempt, then Lois Lerner is a no-brainer.

1 comment:

  1. Lois Lerner sure didn't learn that she needed to keep her mouth shut, did she?


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