I thought I'd expand on my previous posts (see here and here) since some folks still seem confused.

Yesterday, the House, in a bipartisan vote, found former IRS Exempt Organizations Director Lois Lerner in criminal contempt of Congress for refusing to testify about the IRS targeting of conservative groups.

Rep. Issa explains:

“To preempt the release of an independent investigation, Ms. Lerner publicly admitted that the IRS division she led had targeted conservatives. After waiving her right to protection from self-incrimination, Lerner had a choice: testify fully and truthfully about what occurred or face criminal contempt. Ms. Lerner refused to testify even after her attorney told Congress she would do so.

“Unless the President decides to assert executive privilege, there is no precedent for the U.S. Attorney for the District of Columbia to do anything but pursue this criminal case. Absent political interference by the Administration, this legally binding action – as well as a separate resolution calling for a special prosecutor to take over the Main Justice Department’s tainted and dormant investigation – require the Justice Department to take action.”

There's a lot of information packed in there. Here are the 7 issues that will impact the outcome.

(1) Lerner planted the question that revealed the IRS targeting in order to preempt an internal investigation report. It has been largely forgotten now, but this scandal first came to light because Lerner masterminded a roll-out strategy for the scandal because an inspector general's report that detailed the targeting was imminent. The first step in that strategy was for Lerner to ask a friend to pose the question at a conference so that Lerner could explain away the scandal before the IG report became public.

(2) Lerner may have waived her Fifth Amendment right against self-incrimination. Virtually all the commentary I see on this from conservative websites (and from Rep. Issa) is, at the very least, incomplete. Part of the difficulty is that application of the right against self-incrimination before Congress is an undeveloped area of law. I cannot emphasize that enough. We just don't know whether she waived her right against self-incrimination because there is scant judicial guidance on this, and what guidance does exist is contradictory. We can take civil and criminal case law as a guide to self-incrimination before Congress, but the bottom line is that witnesses before Congress can pretty much get away with whatever Congress will let them get away with. There were several missteps here.

First, Issa let Lerner go with a blanket invocation of the Fifth Amendment the first time she came before the committee. Such blanket invocations are foreign to civil and criminal cases, so Issa let congressional procedure deviate from civil and criminal procedure right out the gate. He tried to clean it up later by issuing a statement saying she'd waived the Fifth, but it's unclear whether a court will accept that (again, there's no precedent either way).

Second, Issa eventually tried to remedy this problem and make the congressional procedure more closely conform to case law by calling Lerner back and getting her to invoke the Fifth Amendment to specific questions. Unfortunately, case law provides that a witness may waive the right against self-incrimination in one proceeding, and then invoke it later at a different proceeding on the same subject. So even if Lerner waived the right at the first hearing, it will be tough to argue that she waived it for the second hearing, at least if we're applying civil and criminal case law.

Civil case law has also held that a witness may make exculpatory statements without waiving the Fifth Amendment in the situation where the witness is both compelled to appear (i.e., the testimony is not voluntary) and the witness makes no incriminating statements prior to the waiver. Both of those things appear to be true here, but as I wrote above, this was a congressional proceeding, not a civil trial. The difference may be crucial to resolving whether Lerner waived and there just isn't any judicial guidance on it. My gut is that the courts will simply default to the easiest route and apply their own civil precedent to Congressional proceedings.

(3) Lerner has been cited for criminal contempt. Criminal contempt is not the same thing as civil contempt. A criminal contempt conviction ends in a fine or jail time or both. It does not end in the witness being compelled to testify. If the House wants to actually get Lerner's testimony, it will have to sue for civil contempt and win the waiver argument described above. This is the procedure the House took to try and get AG Holder to cough up Fast & Furious information, but that case is still bogged down in court.

(4) Lerner has indicated that a crime occurred. There have been some suggestions that Lerner is "innocent until proven guilty" and that we cannot take a negative inference from her invocation of the Fifth Amendment. This is false. It is entirely appropriate to take a negative inference from someone invoking the Fifth in civil proceedings or before Congress. She had no reason to do so unless she believed a crime had been committed. We can take Lerner at her word when she indicated that she believes a crime had been committed.

(5) The law requires that the U.S. Attorney present the matter to a grand jury. 2 U.S.C. § 194 provides that in these cases: "it shall be the duty of the . . . Speaker of the House . . . to certify, and he shall so certify, the statement of facts aforesaid under the seal of the . . . House . . . to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action."

However, some U.S. Attorneys have resisted fulfilling that duty. Previously, the only circumstance in which U.S. Attorneys have declined to present the matter to a grand jury is when the administration invokes executive privilege. That's why Issa mentions executive privilege in his statement. He's pre-butting a potential objection from the Holder Department of Justice by pointing out that there has never been an assertion of executive privilege in Lerner's case. Does that mean that the U.S. Attorney will actually present the matter to a grand jury here? No. Expect resistance, the "political interference" Issa mentions.

(6) Lerner could cut a deal. Reports have indicated that Lerner was close to cutting a deal just prior to being called to testify the second time. Obviously, if some kind of deal is made, the contempt matter ends. Such a deal could be made at any time, but is unlikely to come while we wait and see what the U.S. Attorney decides to do. The chance for a deal drops to near zero if the U.S. Attorney declines to present the matter to a grand jury.

(7) Issa could seek civil contempt lawsuit authorization at any time. In the case that the U.S. Attorney decides not to do his duty, Issa could seek authorization (first in the committee and then in the full chamber) to file a civil lawsuit seeking to compel Lerner's testimony. This has only ever happened to three people: Harriet Miers, Joshua Bolton, and Eric Holder.

Posted by: Gabriel Malor at 05:50 AM | Comments (162)
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Happy Thursday.

Neo-neocon had a thorough dissection of NYTimes "shilly-shallying" earlier this week.

National Journal reports on the "conga line of problems" at HHS.

Hey, remember when Sec. Clinton's State Department repeatedly declined to designate Boko Haram as a terrorist group? The Daily Beast does.

Interesting that 26 Dems voted for the resolution asking DOJ for a special counsel in IRS scandal. And yet only 6 Dems voted for contempt for Lerner.

On the Lerner situation, as I wrote a couple times before, the next step is for the U.S. Attorney's office to bring the matter before a grand jury. I don't expect the Obama administration will allow that, though, despite 2 U.S.C. § 194. In the past, DOJs have declined to fulfill their duty under § 194 when they could cite executive privilege. There's been not a whisper of a suggestion that executive privilege applies in Lerner's case, but does anyone really think it likely that the administration will let this go before a grand jury?

Also, keep in mind that the outcome for the criminal contempt route is not that Lerner is ordered to testify. Under this procedure, she can simply be fined or imprisoned, not compelled to come clean. If the House wants to actually get her testimony, it will have to sue for civil contempt, which is the procedure it took to get AG Holder to cough up Fast & Furious information. The Holder contempt case is notably still bogged down in court.

Posted by: Gabriel Malor at 02:54 AM | Comments (265)
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Eh.

Posted by: Maetenloch at 06:44 PM | Comments (592)
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The rest of us already held her in contempt without a formal vote.

The House of Representatives voted Wednesday to hold former IRS official Lois Lerner in contempt of Congress for refusing to testify about the agencyÂ’s targeting of conservative groups.

The House voted 231-187 for a resolution holding Lerner in contempt.

Gabe has written about what comes next.

Posted by: Ace at 03:31 PM | Comments (469)
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Two things flow from this:

1. He does not write or even review his scripts before he films the show. If he did either of those things, he'd know how to pronounce some of these words, and they wouldn't sneak up on him like crafty hobgoblins.

2. He doesn't, it seems, read very much at all, because common words like "tortoise," "hubris," and even "Kardashian" are apparently not in his active vocabulary. He thus has to sound them out through phonics as he sees them, pronouncing them as if they literally come from a foreign language ("tortoise" becomes the made-up French word "tortisse," accent firmly on the -isse).

This frequently results in wordcrime.

This great video was put together by "The Anti-Hillary Internet Website."

more...

Posted by: Ace at 01:33 PM | Comments (356)
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Future primitive.

Under the first phase, fines and jail terms were introduced Thursday for offenses that include failure to attend Friday prayers, indecent behavior and pregnancies outside of marriage, the Star Online regional news site reported.

...

A second phase of the law, which will come into force later this year, provides for severing of limbs and flogging for property crimes. A third phase set for late 2015 will allow the justice system to sentence offenders to death by stoning for crimes including adultery and gay sex.

...

The decision by the all-powerful sultan to introduce sharia law spurred rare domestic criticism of the ruler on social media, according to news agencies in the Brunei capital, Bandar Seri Begawan. The 67-year-old sultan ordered a stop to the criticism, and it has largely ceased, Star Online reported.

Compare with the last post about the US Government's keen desire to "regulate" its critics.

Posted by: Ace at 11:29 AM | Comments (375)
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Not even hiding it anymore.

Government officials, reacting to the growing voice of conservative news outlets, especially on the internet, are angling to curtail the media's exemption from federal election laws governing political organizations, a potentially chilling intervention that the chairman of the Federal Election Commission is vowing to fight.

...

All media has long benefited from an exemption from FEC rules, thereby allowing outlets to pick favorites in elections and promote them without any limits or disclosure requirements like political action committees.

But Goodman cited several examples where the FEC has considered regulating conservative media, including Sean Hannity's radio show and Citizens United's movie division. Those efforts to lift the media exemption died in split votes at the politically evenly divided board, often with Democrats seeking regulation.

...

“The picking and choosing has started to occur,” said Goodman. “There are some in this building that think we can actually regulate” media, added Goodman, a Republican whose chairmanship lasts through December. And if that occurs, he said, “then I am concerned about disparate treatment of conservative media.”

He added, “Truth be told, I want conservative media to have the same exemption as all other media.”

Posted by: Ace at 10:44 AM | Comments (234)
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Michelle Malkin writes about the wink-and-a-nod way Hollywood treats its own child-sex cult.

Posted by: Ace at 09:54 AM | Comments (260)
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The problem isn't that the Left hates work; the problem is that they don't understand the difference between productive work and unproductive work.

The public sector (where many if not most leftists focus their lives, directly or indirectly) is not a productive enterprise. It consumes; it does not produce. It is a cost center, not a profit center. This is not to say that a public sector is bad or wrong or unnecessary (though I think it should be as small as possible) -- it is simply to say that the public sector, generally speaking, does not produce wealth. It eats wealth. The larger the public sector, the less wealth that is produced (in market economies, anyway).

But this is just another way of saying that the political left doesn't really understand basic economics, or the difference between wealth and money.

This goes back to a point I was making a couple of weeks back about the left hating economic inequality, but being perfectly okay with political inequality. In the public sector, power stems from rank and position, from networks of colleagues and regulatory influence -- thus, public-sector workers tend to disdain wealth-building because they've never done it and don't really understand it. In the public sector wealth just appears as if by magic, and can then be spent (for this is exactly how liberals understand taxation).

In the real world that citizens must inhabit, however, wealth is vital. It keeps us clothed, shod, and fed; it provides shelter; it provides contingency against future calamity. It makes life more comfortable and more enjoyable. It provides alternatives, in amazing profusion. More wealth, in general, is better. Rich people get richer, but poor people get richer too, so everyone benefits in that scenario. Political power, on the other hand, tends to be a zero-sum equation: power gained by one is power lost or abrogated by someone else.

To sharpen my point: people who create wealth in the private sector tend to be far more productive than those in the public sector, all other things being equal. The left may natter on about "intangibles" and "externalities" in terms of creating value, but ultimately before a thing is consumed it must be produced (remember Say's Law?). Products must be paid for with other products. An economy cannot function for long without productive labor. more...

Posted by: Monty at 02:52 PM | Comments (125)
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Wow.

The government is being accused of inaction, which it denies. 200 girls were kidnapped earlier; the group proudly declares it plans to sell them into sexual slavery. (That quote later, and it's a corker.)

They've now kidnapped another eight girls.

The US has offered investigatory aid, which Nigeria has accepted.

But even as the help was offered to Jonathan, new details were emerging about the abduction of at least eight girls between the ages of 12 and 15, who were snatched Sunday night from the village of Warabe.

The village is located in the rural northeast, near the border of Cameroon, an area considered a stronghold for Boko Haram, a group that U.S. officials say has received training from al Qaeda affiliates.

Villagers in Warabe told CNN that gunmen moved from door-to-door late Sunday, snatching the girls and beating anybody who tried to stop them.

...

The United States has branded Boko Haram a terror organization and has put a $7 million bounty on the group's elusive leader, Abubakar Shekau.

"Boko Haram" is translated as "Western education is sin." The actual etymology, I read, goes like this: The Western alphabet, taught to many Africans, is called "Boko," which is believed to be derived from "book." Thus, "Boko" (Western alphabet) "Haram" (sinful, forbidden).

I think that's a contested etymology though.

I prefer to translate it as "Learning is Sin," which more accurately sums up this cult Medieval sociopathic savagery.

A man claiming to be Shekau [the Boko Haram leader, upon whose head is laid a $7 million bounty -- ace] appeared in a video announcing he would sell his victims. The video was first obtained Monday by Agence-France Presse.

"I abducted your girls. I will sell them in the market, by Allah," he said, according to a CNN translation from the local Hausa language. "There is a market for selling humans. Allah says I should sell. He commands me to sell. I will sell women. I sell women."

In the nearly hourlong, rambling video, Shekau repeatedly called for an end to Western education.

"Girls, you should go and get married," he said.

More: Eight girls were abducted, but witnesses say 125 people were murdered in the attack.

Translated from French:

Boko Haram Attack: At Least 125 Killed

The attack led Monday by the Islamists of Boko Haram in a town in the northwest of Nigeria near the Cameroon border has left at least 125 victims.

The attackers, wearing camouflage fatigues, had opened fire on the town market before setting fire to houses and vehicles. Some of the victims had had their throats slit.

I know they switch from "deaths" to "victims/casualties" and I'm not sure if that represents a walk-back or not. The original headline claimed close to 300 dead, a claim they seem to have walked back from.

"Uncatchable:" Frumious Bandersnatch mentions and translates this article from the Frankfurt Allgemaine Zeitung (FAZ). The writer seems intensely skeptical of the government's claim that it just can't find Boko Haram.

Boko Haram appears uncatchable. That is already astonishing because the native region of influence of the terrorists, the states of Borno and Yobe, are expansive, but not expansive enough that they should be able to move around with 223 hostages and armored vehicles without being noticed by more than 20,000 soldiers.

See pages 2 and 3 for a very interesting (and alarming) recap of Boko Haram's history, and speculation as to whether the terrorist group is being used/supported by various factions in the Muslim-held north.

Posted by: Ace at 08:44 AM | Comments (482)
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