Did Lois Lerner botch her Fifth Amendment rights?
After a key agency IRS official today invoked her Fifth Amendment right not to incriminate herself during congressional testimony, Oversight and Government Reform Chairman Darrell Issa said he will review legal precedent in order to determine whether Lois Lerner, the director of Exempt Organizations at the IRS, could be held in contempt of Congress.
Although Lerner, who’s at the center of the controversy, refused to answer questions from members of the committee, she read a brief statement into the record declaring her innocence. Furthermore, at the request of Issa, Lerner authenticated a document containing her written answers for the inspector general’s investigation
of the matter.
Those actions prompted members of the committee to question whether Lerner effectively waived her right to invoke the Fifth Amendment.
A Republican committee aide said the application of the Fifth Amendment has nothing to do with House or committee rules, but rather is a constitutional question
. The aide said courts have interpreted that the Fifth must be asserted in the absolute, not partially.
Sources also believe Lerner’s decision to read a statement into the record while invoking the Fifth may have been unprecedented
for congressional testimony.
One constitutional expert
noted that generally people who claim the Fifth in hearings give no statement and it would be “unusual” to give a statement and still claim the Fifth.
“Most witnesses claiming the Fifth will not tempt fate by answering any questions
,” said Michael Gerhardt, a University of North Carolina constitutional law professor who specializes in the relationship between Congress and the executive branch. “I suppose the witness might argue he or she is claiming the Fifth for limited purposes but then needs to have someone spell out the relevant scope.”