Darrell Issa would like a do-over. The Chairman of the House Oversight Committee, no doubt motivated in part by outrage over his allowing the IRS's Lois Lerner to invoke her Fifth Amendment right during a hearing Wednesday, plans to demand she return to complete her testimony. His argument: Lerner waived her ability to claim that right once she offered an opening statement. Is he right?
Probably not. "It's a very weak claim, bordering on frivolous," said defense attorney Jonathan Marks of New York when we spoke by phone this afternoon. Marks, who was a federal prosecutor for four years before entering private practice, was highly skeptical that Issa's legal interpretation was valid.
The Fifth Amendment is meant to ensure that a criminal suspect can't be forced to offer evidence against himself. When you take advantage of your right to remain silent when questioned by police, you're taking advantage of that stipulation in the Bill of Rights. When witnesses do it at Congressional hearings, they're doing the same thing: refusing to provide any information that might some day make its way into a criminal trial.
But that right isn't sacrosanct. Before we get into why, it's worth looking at what happened today.
C-SPAN has a video showing today's hearing, but the key moment was this. Issa asks if she'd like to offer an opening statement, and Lerner does so.
During that statement, Lerner introduces herself and describes her background and current position. She outlines how the investigation came about. She then explains that she has done nothing wrong and that she is invoking her Fifth Amendment right against self-incrimination.
Issa then asked her to authenticate that a series of questions submitted to the Inspector General came from her (as in the photo at top). She did so. Issa then claimed that the assertions in her opening statement and in verifying the questionnaire served as a waiver of the right. Lerner asserted her right, and Issa excused her.
But before she left, Rep. Trey Gowdy of South Carolina jumped in, as transcribed by the National Review.
After Lerner's statements, Representative Trey Gowdy (R., S.C.) argued she "waved her right to Fifth Amendment privilege" by making those statements and urged that she stay and answer questions: "You don’t get to tell your side of the story and then not be subjected to cross-examination." Lerner was ultimately allowed to invoke her Fifth Amendment rights and leave the hearing.
Gowdy does have a point, Marks told me. In a courtroom, "you cannot testify on direct examination, and then when it comes to cross invoke the Fifth Amendment," he pointed out. In other words, you can't refuse to incriminate yourself only on your terms.
The ranking Democrat on the committee, Elijah Cummings of Maryland, responded, using an argument which Marks had made separately: The hearing wasn't a courtroom. "In a court," Marks said, "it would be a stronger claim." But since Lerner didn't answer any non-trivial questions, it was hard to see how Issa could force her to testify.
Issa excused Lerner, noting that he reserved the right to recall her after considering the issue. He explained his rationale to Politico:
“When I asked her her questions from the very beginning, I did so so she could assert her rights prior to any statement,” Issa told POLITICO. “She chose not to do so — so she waived.”
Which isn't quite what happened.
Nonetheless, Issa did pledge to ask experts their opinion on Lerner's right to invoke the right. But before he announced his new plan, it probably wasn't only legal experts from whom he was hearing. Conservatives expressed outrage online; Rush Limbaugh excoriated him on his radio program. It became hard not to recall her, legal matters notwithstanding.
There's little drawback for Issa in recalling Lerner. Having her testify would be a coup; she's one of the few names in the scandal who hasn't yet been questioned. Even simply recalling her shows the sort of toughness toward the IRS that the committee seemed to revel in today. He may not win on the legal point, Marks thinks. But on the political point, on the challenge from Gowdy — Issa just saved face. And what's politics without a little frivolity?