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Lois Lerner. (Photo: Kevin Dietsch/UPI/Newscom)
The Daily Signal
A Flawed Legal
Analysis Is Helping Lois Lerner
Hans von Spakovsky
April 04, 2015
On March 31, Ronald Machen, the outgoing U.S. attorney for the District
of Columbia, wrote House Speaker John Boehner to inform him that the
Justice Department would not present Lois Lerner’s contempt citation to
a federal grand jury.
The letter explaining his decision is an exercise in misdirection—the
kind of misdirection that magicians use to fool an audience. Why?
Because at no point in his detailed, seven-page legal analysis does
Machen mention the most important point demonstrating that Lerner did,
in fact, waive her Fifth Amendment right.
Lerner made two abbreviated appearances before the House Oversight and
Government Reform Committee—one on May 22, 2013, the other on March 5,
2014. As Machen noted, at the May 22 hearing, Lerner gave a short
statement declaring her innocence and claiming that she had “not done
anything wrong,” had “not broken any laws . . . IRS rules or
regulations,” and had “not provided false information to this or any
other congressional committee.” She then proceeded to assert her Fifth
Amendment right against self-incrimination and refused to answer any
questions.
When Lerner was recalled before the House Committee on March 5, 2014,
she again refused to answer any questions and reasserted her Fifth
Amendment privilege. Chairman Darrel Issa, R.-Calif., informed her that
the committee had voted that she had waived her Fifth Amendment right
and that she would be held in contempt if she continued to refuse to
answer the committee’s questions.
In the March 31 letter, although acknowledging that the House Committee
found that Lerner’s “opening statement was the equivalent of
‘voluntary’ testimony,” Machen concludes that, in declaring her
innocence, Lerner did not waive her Fifth Amendment privilege because
“case law establishes that Ms. Lerner’s general denials of wrongdoing
did not amount to ‘testimony’ about the actual facts under the
Committee’s review.”
Having decided that Lerner did not waive her Fifth Amendment privilege,
Machen goes on to claim that it is within his discretion not to present
the House’s May 7 contempt citation to a federal grand jury. He bases
that claim on his reading of a 1984 legal opinion from the Justice
Department’s Office of Legal Counsel. That despite the federal law,
which provides that, once the House of Representatives has voted to
find a witness in contempt, the speaker of the House must certify the
matter to the “appropriate United States Attorney, whose duty it shall
be to bring the matter before the grand jury for its action” (emphasis
added).
Although this is debatable from a legal standpoint, and lawyers can
disagree on whether Lerner’s declaration of innocence at the public
hearing was or was not testimony that waived her Fifth Amendment
privilege, what is not debatable is that there is a gaping hole in
Machen’s recitation of the facts and his legal analysis.
According to The Wall Street Journal, right after Lerner’s frustrating
March 5, 2014 appearance before the House committee, her lawyer,
William Taylor III, told reporters at a press conference that Lerner
had given a “lengthy interview” to Justice Department prosecutors
“within the last six months, as part of the agency’s investigation into
IRS targeting of conservative tea-party groups.” Taylor even admitted
that Lerner had freely given DOJ her testimony without getting any
promise of immunity from prosecution.
Why is this significant? Because, if Taylor is to be believed, Lerner
obviously did not assert her Fifth Amendment privilege when she gave
Justice prosecutors a “lengthy interview” about the very subject she
had been subpoenaed to discuss with the House Oversight and Government
Reform Committee. While the prevailing rule in most federal courts is
that a waiver of the Fifth Amendment privilege at one proceeding does
not carry through to another proceeding, that is not the rule in the
District of Columbia.
In Ellis v. U.S. (1969), the D.C. Court of Appeals specifically refused
to adopt that rule, saying it was “unsound.” As the court held, “once a
witness has voluntarily spoken out, we do not see how his protected
interest is jeopardized by testifying in a subsequent proceeding,
provided he is not required to disclose matters of substance which are
unknown to the Government.” Under those circumstances, a person can
reassert the privilege only if there is a “real danger of further
criminalization.”
Ellis involved a defendant who voluntarily testified before a grand
jury but then refused to testify at trial, asserting his Fifth
Amendment privilege against self-incrimination. Once Lerner voluntarily
spoke to Justice Department prosecutors without receiving a grant of
immunity, she lost her ability to invoke the privilege to avoid
answering congressional questions about the same information she had
already provided.
Machen says that a “team of experienced career prosecutors” was
assigned to review this matter, so certainly they would know about the
Ellis rule. They also must know about Lerner’s extensive testimony to
the prosecutors. So why would Machen completely ignore this in his
letter?
Ignoring highly relevant, although perhaps inconvenient, facts,
outgoing U.S. Attorney Ronald Machen has issued a flawed legal
analysis. It reaches an erroneous, but politically expedient,
conclusion—one that gives Lerner a pass and further hinders
congressional efforts to get to the bottom of this scandal. It’s a
pretty slick trick. No wonder Machen’s pulling a disappearing act.
Originally published in National Review
Read this and other articles at the Daily Signal
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