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A Fifth of Obama



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You can always rely on the administration of Barack Obama, a former constitutional-law lecturer (or as his résumé-inflating fans put it, “professor”), to do the sleazy thing when it comes to the Constitution the president is sworn to defend. Thus, the performance on Wednesday of Lois Lerner, chief of the Obama IRS’s Conservative Harassment Division, before the House oversight committee.

There’s an old scam criminal defendants occasionally pull. They give a bit of exculpatory direct testimony – just enough to gaze plaintively at the jurors and swear, cross-their-hearts, that they are pure as the driven snow. Then, just as the moment of submitting to cross-examination approaches, they announce that, even though they’re really, truly innocent, they just can’t answer the mean prosecutor’s questions – on advice of counsel, of course, in reliance on the Fifth Amendment.

Everyone familiar with this area of the law knows that this is contemptuous conduct. To testify, by definition, is to agree to submit to cross-examination. Once you begin to answer questions – i.e., to testify – you waive your right not to testify – i.e., not to answer questions.

In a trial, the judge does not put up with such shenanigans, which are, after all, a fraud on the process. The court rules that, by giving exculpatory testimony on direct examination, the defendant has waived his Fifth Amendment privilege; therefore, the defendant is directed to answer the prosecutor’s questions on cross-examination. If he persists in refusing to answer, he is held in contempt. Thereafter, each refusal to answer is a separate contempt, for which the defendant can (a) be jailed by the judge (until he relents and agrees to be cross-examined), and (b) later prosecuted by the government, because contempt is an indictable crime, too.

The point of the scam is obvious. The defendant wants to get his proclamation of innocence out in the public domain – maybe it will influence a juror or two. Lerner is not on trial (not yet, anyway) but her tactic had the desired effect: all day long the networks have been running loops of her assertions of innocence.

In this situation, the prosecutor has a choice to make. Option 1: Move to have the testimony stricken. But though the Court will grant this motion, it really does not cure the problem. After all, the jury has already heard the testimony; even if the jurors are told not to consider it, they may be influenced by it. Thus, Option 2: Be prepared to ask numerous pointed questions showing the various weaknesses in the claim of innocence, and put the defendant in the position, every single time, of refusing to answer these questions.

The main disappointment this morning was Chairman Darrell Issa’s stunning unpreparedness. Representative Issa is not a lawyer, but one must assume he has access to decent legal advice as chairman of the House oversight committee (in addition to being a member of the judiciary committee). An experienced lawyer could see this stunt coming a mile away. Indeed, the press reported all day on Tuesday that Lerner would take the Fifth.

Again, there are two obvious ways to handle the dilemma Issa found himself in. Option 1: Before permitting Lerner to read her self-serving statement into the record (and the cameras), you put her under oath and ask her, with her lawyer standing next to her, whether she intends to refuse to answer the committee’s questions; if she and counsel indicate that that’s the plan, you can either dismiss her there and then, or ask her a few questions to demonstrate that she will take the Fifth – but in either event, you don’t let her read her opening statement.

Or there’s Option 2: You let her read her statement, but then be ready to go with about 30 or 40 pointed questions designed to show how crooked she appears to be and thus how suspect her protestations of innocence are. When you do that, Mr. Chairman, your questions and her refusals to answer go on the TV news loop, too, and they make the administration look every bit as terrible as it deserves to look.

Chairman Issa clearly did not know what to do, resorted to neither option, and ended up with the worst of both worlds: Lerner got her self-serving statement out and then was not pounded by exacting, factual questions. Fortunately, South Carolina Republican Trey Gowdy, an excellent prosecutor in his former life, interrupted the proceedings to explain exactly what Lerner was trying to pull and why it was a willful perversion of the truth-seeking process. (And that made the loop, too.)

One last thing. Ms. Lerner also predictably did a song-and-dance about how the Fifth Amendment privilege is designed to protect innocent people, and how no one should think she’s guilty of any wrongdoing just because she has declined to explain herself. This is part untrue and fully disingenuous.

The Fifth Amendment privilege is not designed to protect the innocent. The innocent do not need protection from the truth (just from the IRS). The privilege is designed to protect the bedrock principle that the burden of proof is always on the government and, derivatively, that a person is never required to prove his innocence. (No surprise, I suppose, that an IRS official is unfamiliar with these foundational pillars of Anglo-American law.) And though Lerner, ever mindful of the cameras, went out of her way to avoid saying so, the Fifth Amendment privilege against self-incrimination can be asserted in good faith only if the person has reason to believe a truthful answer could tend to incriminate her.

Hopefully, Chairman Issa learns how to do this dance. The music doesn’t sound like it will be stopping any time soon.



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