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Did Lois Lerner waive her right to invoke the Fifth Amendment?

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While Internal Revenue Service official Lois G. Lerner invoked the Fifth Amendment in her refusal to testify before Congress Wednesday, the fact that she gave a lengthy opening statement defending her innocence infuriated some lawmakers and prompted them to suggest she had inadvertently waived her right against self-incrimination.

In the course of her opening statement Lerner, the head of the IRS division on tax-exempt organizations, told members of the House Oversight and Government Reform Committee, ““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.”

But the fact that she reiterated some of the same answers she gave the inspector general during his investigation prompted the panel’s chairman Darrell Issa (R-Calif.) to remark, “At this point, I believe you have not asserted your rights, but have effectively waived your rights.”

Did she?

Like many legal questions, it depends on whom you ask. Stanley M. Brand, who has represented several clients that have faced congressional scrutiny, wrote in an e-mail he did not believe she provided “a waiver” for lawmakers to ask her questions by broaching the subject of her division’s activities before invoking the Fifth Amendment.

“The question would be whether she made statements about the factual substance of the subject, but courts will be loath to divest someone of their rights absent a clear and unequivocal waiver,” Brand wrote.

Brand raises a key point—in order to compel Lerner to testify, Congress would have to hold her in contempt.

In certain circumstances, Lerner’s detailed opening statement could be interpreted as a “subject matter waiver,” meaning she had made factual statements about the case that then opened the door for the committee to ask her for further details.

But to do that they would have to hold her in contempt, and get a judge to rule in favor of it.

Lerner’s lawyer, William W. Taylor, adamantly disagreed. “The law is clear that a witness does not waive her Fifth Amendment rights not to testify as to facts by asserting that she is innocent of the wrongdoing with which she is accused,” he wrote in an e-mail.

In an interview, Taylor said Lerner’s comments—which gave a thumbnail sketch of her division’s operation and the two investigations it has spurred in the offices of the Treasury inspector general and FBI -- didn’t delve into the facts. “It simply said, ‘This is what you guys accused me of, I’m not guilty of it.’”

Still, Issa made it clear Wednesday afternoon he may summon Lerner again to respond to lawmakers’ inquiries. “I am looking into the possibility of re-calling her and insisting she answer questions in light of a waiver,” he told his colleagues. “For that reason, and with your understanding and indulgence, this hearing stands in recess, not adjourned.”

Taylor said he had not engaged in a discussion with Issa’s staff about a possible grant of limited immunity in exchange for Lerner testifying.

Regardless of the legal niceties surrounding Lerner’s invocation of the Fifth, Brand wrote that it’s always a good idea to keep one’s opening remarks short under such circumstances.

“As a matter of advice,” he wrote, “I advise witnesses to restrict themselves in asserting the privilege and reserve any additional comments to those outside the congressional proceeding.”