Oversight report: 6 reasons Lois Lerner waived her Fifth Amendment rights

Patrick Howley Political Reporter
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A report released Tuesday by the House Committee on Oversight and Government Reform asserted that ex-IRS official Lois Lerner waived her Fifth Amendment rights.

Lerner continues to stonewall California Rep. Darrell Issa’s committee, pleading the Fifth again in a divisive Oversight hearing last Wednesday convened to get to the bottom of the IRS’ improper targeting of conservative groups between 2010 and 2012.

Oversight member Rep. Jim Jordan told The Daily Caller that the committee is “moving” toward holding Lerner in contempt of Congress to compel her to testify.

“I think that’s where we’re moving,” Jordan said. “I think that’s where this is headed.” Jordan added that he feels holding Lerner in contempt is “the right thing to do.”

Issa’s report, which Lerner’s attorney Bill Taylor did not read prior to last week’s hearing but nevertheless criticized as partisan and inaccurate, detailed at least four instances in which Lerner lied to or misled the committee.

The report outlined the reasons that Lerner has waived her Fifth Amendment rights:

1. “Lerner Gave a Voluntary Statement at the May 22, 2013 Hearing”

“Rather than properly asserting her Fifth Amendment privilege, Lerner, in the opinion of the Committee, the House General Counsel, and many legal scholars, waived her privilege by making a voluntary statement of innocence. Instead of remaining silent and declining to answer questions, with the exception of stating her name, Lerner read a lengthy statement professing her innocence,” according to the report.

“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,” Lerner said at the May 22 hearing.

2. “Lerner Authenticated a Document during the Hearing”

“Prior to Lerner’s statement, Ranking Member Elijah E. Cummings sought to introduce into the record a document containing Lerner’s responses to questions posed by [the inspector general]. After her statement and at the request of the Chairman, Lerner reviewed and authenticated the document offered into the record by the Ranking Member,” the report reads.

3. “Representative Gowdy’s Statement Regarding Lerner’s Waiver”

“Mr. Issa, Mr. Cummings just said we should run this like a courtroom, and I agree with him. She just testified. She just waived her Fifth Amendment right to privilege,” Oversight member Rep. Trey Gowdy said at the May 22 hearing. “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. She waived her right of Fifth Amendment privilege by issuing an opening statement. She ought to stay in here and answer our questions.”

“Shortly after Representative Gowdy’s comments, Chairman Issa excused Lerner, reserving the option to recall her at a later date. Chairman Issa stated that Lerner was excused ‘subject to recall after we seek specific counsel on the questions of whether or not the constitutional right of the Fifth Amendment has been properly waived.’ Rather than adjourning the hearing on May 22, 2013, the Chairman recessed it, in order to reconvene at a later date after a thorough analysis of Lerner’s actions,” according to the report.

4. “Committee Business Meeting to Vote on Whether Lerner Waived Her Fifth Amendment Privilege”

“On June 28, 2013, the Chairman convened a business meeting to allow the Committee to vote on whether Lerner waived her Fifth Amendment privilege. The Chairman made clear that he recessed the May 22, 2013 hearing so as not to ‘make a quick or uninformed decision.’ … The Chairman reviewed advice from the Office of General Counsel of the U.S. House of Representatives, arguments presented by Lerner’s counsel, and the relevant legal precedent. After much deliberation, he determined that Lerner waived her constitutional privilege when she made a voluntary opening statement that involved several specific denials of various allegations,” according to the report.

“She made four specific denials,” Issa said at the June 28 meeting.

5. “Lois Lerner Continues to Defy the Committee’s Subpoena”

“Despite the fact that Lerner was compelled by a duly issued subpoena and had been warned by Chairman Issa of the possibility of contempt proceedings, and despite the Committee having previously voted that she waived her Fifth Amendment privilege, Lerner continued to assert her Fifth Amendment privilege, and refused to answer any questions posed by Members of the Committee. Chairman Issa subsequently adjourned the hearing and excused Lerner from the hearing room. At that point, it was clear Lerner would not comply with the Committee’s subpoena for testimony,” according to the report.

6. Lerner’s private interview with the Department of Justice (DOJ) “weakens the credibility” of her Fifth Amendment claim

“Following Lerner’s appearance before the Committee on March 5, 2014, her lawyer revealed during a press conference that she had sat for an interview with Department of Justice prosecutors and [inspector general] staff within the past six months. According to the lawyer, the interview was unconditional and not under oath, and prosecutors did not grant her immunity. This interview weakens the credibility of her assertion of the Fifth Amendment privilege before the Committee. More broadly, it calls into question the basis for the assertion in the first place,” according to the report.

Issa appears unwilling to stop pursuing Lerner’s testimony.

“In the wake of Ms. Lerner’s refusal to testify and answer questions, this report offers detailed evidence about steps she took to crack down on organizations that exercised their Constitutional rights to free political speech,” Issa said in a statement. “She involved herself in efforts to apply unprecedented scrutiny to new applicants, existing organizations, and to write new rules after President Obama and other prominent Democrats expressed outrage at the Supreme Court’s Citizens United decision. Finally, the report presents evidence that Ms. Lerner misled Congress about targeting and her own conduct.”

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