The Corner

Lerner Too Clever By Half

Former Senator Fred Thompson, who was a tremendous trial lawyer long before he played one on TV, has an excellent column on the home-page this morning about Lois Lerner’s gamesmanship yesterday — first testifying to her fully exculpatory version of events in the IRS’s scandalous targeting of conservative activists, then refusing to answer the House oversight committee’s questions. (I wrote a post about this here on the Corner last night.) 

Fred observes that committee chairman Darrell Issa had never seen anyone pull that stunt before, and neither had Fred. But as I noted in my post, it happens from time to time — which, of course, is why the “selectivity” rule that Fred describes exists. As it happens, I’ve not only seen it happen, I’ve prosecuted someone for doing it.

In the “Pizza Connection” case of the mid-eighties (at 17 months, still the longest federal criminal trial in history, I believe), our lead defendant, Gaetano Badalamenti (the boss of the Sicilian mafia), gave direct testimony that was fully exculpatory with regard to the drug and racketeering charges against him. At the conclusion of his direct, he indicated that he would not answer questions about various subjects (in particular, the mafia) on cross. A court otder striking his direct testimony would not have been a realistic remedy under the circumstances – the jury had heard the testimony, paying it the rapt attention one would expect in a case of this nature. Declaring a mistrial was also not a practical option at that point — we were in the 14th month of trial, I think. Instead, the judge properly found that Badalamenti had waived his privilege against self-incrimination by offering a self-serving, exculpatory version of events on direct. He was then cross-examined at length (by the lead prosecutor on our team, Louie Freeh, later the FBI director). Badalamenti persisted in refusing to answer over 75 questions, despite repeatedly being directed to answer by the judge — each refusal being a contempt of court.

After the testimony was concluded, I went to the grand jury and indicted Badalamenti for criminal contempt. (We sealed that indictment while the Pizza Connection trial was still ongoing, (a) to avoid the possibility of prejudicing the jury with negative publicity about the defendant, and (b) to avoid any suggestion that the indictment could be retaliation in the unlikely event Badalamenti were to be acquitted.) After he was convicted a few months later, we unsealed the contempt indictment. Badalamenti ultimately pled guilty to the contempt charge. The Second Circuit court of appeals eventually upheld the trial court’s rulings that Badalamenti had clearly waived his Fifth Amendment privilege and that his refusals to answer questions was contemptuous.

Like Fred, I think Ms. Lerner has waived her privilege to refuse to answer questions. If the committee calls her back, and she persists in refusing to answer questions, I believe she would could properly be held in contempt of Congress.


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