Lois Lerner’s New Lawyer Elijah Cummings is wrong: She did waive her Fifth Amendment rights. By Hans von Spakovsky Archive Latest RSS Send Rep. Elijah Cummings Print Text Comments31 Hans von Spakovsky But as Issa points out in a March 14 letter to Cummings, Issa specifically told Lerner at the March 5 hearing that, already on June 28, 2013, the committee approved a resolution “rejecting Ms. Lerner’s claim of Fifth Amendment privilege based on her waiver.” In fact, on February 25, 2014, the committee sent Lerner’s counsel a letter stating that the committee “explicitly rejected” his client’s Fifth Amendment claim. At the March 5 hearing, Issa also warned Lerner that if she continued to refuse to answer questions while she was under a subpoena, “the Committee may proceed to consider whether she should be held in contempt.” Cummings and his lawyer “consultants” rely on three U.S. Supreme Court cases – Bart v. U.S. (1955), Quinn v. U.S. (1955), and Emspak v. U.S. (1955) – to claim that Issa did not use the specific language needed to overrule Lerner’s assertion of the Fifth Amendment and to warn her that she risked contempt. According to Cummings, Lerner was “left to guess whether or not the committee had accepted” her objection to answering any questions. Advertisement Their reliance on these cases is misplaced. As Issa notes in his letter, there are no “magic words” needed by a congressional committee to apprise a witness that she will be held in contempt if she does not answer questions. In fact, in the Quinn case, the Supreme Court said that just as a witness does not have to use any particular form of words to assert her Fifth Amendment privilege or objection to answering a question, “so also the committee is not required to resort to any fixed verbal formula to indicate its disposition of the objection. So long as a witness is not forced to guess the committee’s ruling, he has no cause to complain.” In the Bart case, the Supreme Court dismissed a contempt citation because of the committee’s “consistent failure” to advise the witness of the committee’s position on his refusal to answer questions: The “petitioner was left to speculate about the risk of possible prosecution for contempt; he was not given a clear choice between standing on his objection and compliance with a committee ruling.” No reasonable judge could review the record and come to any conclusion other than that Lerner and her lawyer were advised both orally and in writing that the House Oversight and Government Reform Committee had rejected Lerner’s assertion of the Fifth Amendment and that she risked a contempt citation if she chose once again to refuse to answer the committee’s questions. This is all the more clearly true since we now know that Lerner already provided detailed information to the Justice Department before her appearance at the House committee on March 5. Under the applicable rules of the federal courts in the District of Columbia, the interview she gave to prosecutors meant that she waived her right to assert the Fifth Amendment Lois Lerner has so far refused to cooperate with the committee. Elijah Cummings is doing everything he can to help her not have to answer questions about the political targeting of conservative organizations. So the real question here is this: What is Cummings afraid would come out if Lerner were forced to testify? And why won’t the current head of the IRS, John Koskinen, who was confronted by Issa in another hearing on March 26, turn over copies of Lerner’s e-mails? — Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation. He is co-author, with John Fund, of Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk and author of the forthcoming Obama’s Enforcer: Eric Holder’s Justice Department.
Posted on: Thu, 27 Mar 2014 22:58:37 +0000
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