Home > House of Reps, IRS, Rights > Don’t trample on the 5th Amendment going after Lerner

Don’t trample on the 5th Amendment going after Lerner

May 24, 2013

AP_Documents_BillofRightsEarlier this week I followed the House Oversight Committee hearing regarding the IRS scandal.  Lois Lerner, the Director of the IRS’s Tax-Exempt Division, gave an opening statement before the Congressional Committee. Then she was excused after pleading the Fifth Amendment. As I stated yesterday, I believe Ms Lerner should be fired. However I am quite concerned that many are calling for her to be put back in the ‘hot seat’ because she ‘waived’ her Fifth Amendment rights.

House Oversight and Government Reform Committee Chairman Darrell Issa may have let her leave the hearing, but he plans to drag her back in. Here is the statement Issa provided 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.”

I would expect this to be a top priority for Issa when Congress returns in June. And I expect Issa to attack the Fifth Amendment at that time. The legality of this area is very murky. Here is an excerpt from Doug Mataconis’s article on the subject:

In the end, all that Lerner’s statement constitutes is a declaration of her own innocence. Given that, the Reiner Court’s holding that the Fifth Amendment privilege still applies to people who claim to be innocent strongly suggests that she did not waive her rights merely be making a statement in which she states that she is innocent.. Indeed, to the extent there is any doubt on this issue I would expect that a judge is going to err on the side of protecting her rights at this stage, especially given the fact that this is a Congressional hearing and not a Grand Jury proceeding or criminal trial and the fact that there is an ongoing FBI investigation of this matter of which Lerner is likely to be, at the very least, a person of interest. A finding that Lerner waived her rights in this Committee hearing would, potentially, prejudice her ability to assert those rights in a law enforcement interrogation.

There will be more to come on this I am sure, but I submit that the default rule of erring on the side of liberty is one that people examining the issue would do well to apply.

I hope the Congressional Committee will rule on the side of liberty as Mr Mataconis suggests. Just because it appears someone appears to have violated other US Citizens First Amendment rights does not excuse violating her Fifth Amendment rights. Even if the Fifth Amendment does not match this situation perfectly (because it technically isn’t a court) it would be unwise for Congress to deny her the right to keep silent when she may self-in-criminalize. Such precedence would show Congress has no respect for the rights of citizens when they are ‘inconvenient’.

I will end this post in the way I find most appropriate, by posting the text from the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation


PS. There are a couple more recent big stories in regards to Lerner. First she has refused to resign as asked, and second she apparently personally sent some of the letters to Tea Party groups being targeted.

  1. May 24, 2013 at 7:37 pm

    Good points. She should have resigned when asked.

    I worry that too many are viewing use of the 5th Amendment as proof of guilt; exercising one’s rights should not create a climate that assumes guilt until proven innocent

    • Ken Santema
      May 24, 2013 at 8:47 pm

      I agree that many have convicted her in the court of public opinion based purely upon pleading the 5th.
      In this end I don’t think this situation will be used to actually fix anything. Instead it will become a talking point for the Republican Party to gain political points and push their agenda of the day… nothing fixed.

  1. June 28, 2013 at 11:26 am
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