May 08, 2014
— Gabriel Malor 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.
“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)
Post contains 1225 words, total size 8 kb.
Posted by: Citizen X at May 08, 2014 05:51 AM (7ObY1)
Posted by: Hamilton at May 08, 2014 05:52 AM (oMYHY)
Posted by: Insomniac at May 08, 2014 05:54 AM (DrWcr)
Posted by: Max Power at May 08, 2014 05:54 AM (QCc6B)
Posted by: eman at May 08, 2014 05:54 AM (EWsrI)
This is textbook tyranny and is exactly what the anti-federalists expected to have happen.
Federal prison is too good for the people that would rule over us as kings and tyrants.
Posted by: Simon White-Thatch Potentloins at May 08, 2014 05:58 AM (NnjE8)
What was that? I'm sorry, I can't hear you.
What? I. said. I. Can't. Hear. You.
I can't hear you from all the way down there.
Posted by: Eric 'His People' Holder, Dept. of Social Justice at May 08, 2014 05:58 AM (FuN7f)
Posted by: Yip at May 08, 2014 05:59 AM (/jHWN)
Posted by: mugiwara at May 08, 2014 05:59 AM (W7ffl)
Posted by: Null at May 08, 2014 05:59 AM (P7hip)
Posted by: Krebs v Carnot: Epic Battle of the Cycling Stars™ [/i] [/s] [/u] at May 08, 2014 06:00 AM (jJ3HS)
Posted by: joncelli at May 08, 2014 06:01 AM (RD7QR)
Posted by: rickb223 at May 08, 2014 06:01 AM (Kud7z)
Posted by: willow at May 08, 2014 06:02 AM (nqBYe)
DOJ won't do squat.
Lerner will be feted in liberal circles as a victim of Republican hate.
It is teh suq.
Posted by: chemjeff at May 08, 2014 06:03 AM (9GG/0)
Posted by: chemjeff at May 08, 2014 06:03 AM (9GG/0)
Posted by: NYC Parent at May 08, 2014 06:03 AM (HEo6y)
13: "All setting a nasty precedent, because the executive branch has the guns."
There is no law but what the man with the guns says there is.
#2030
Posted by: Azenogoth (Freedom or Fire) Est. 1836 at May 08, 2014 06:03 AM (OJn3e)
Take that point and toss it in a landfill... Rule #1 of 'The Chicago Way': Nobody talks... everybody walks.
Posted by: CPT. Charles at May 08, 2014 06:04 AM (lJaja)
Posted by: willow at May 08, 2014 06:04 AM (nqBYe)
Posted by: Krebs v Carnot: Epic Battle of the Cycling Stars™ [/i] [/s] [/u] at May 08, 2014 06:05 AM (jJ3HS)
Posted by: D-Lamp at May 08, 2014 06:06 AM (bb5+k)
Posted by: willow at May 08, 2014 06:06 AM (nqBYe)
Posted by: D-Lamp at May 08, 2014 06:07 AM (bb5+k)
Posted by: Soothsayer § at May 08, 2014 06:07 AM (hIntH)
Posted by: Insomniac at May 08, 2014 06:07 AM (DrWcr)
Posted by: Zombie John Adams at May 08, 2014 06:08 AM (nCSwS)
Posted by: sock_rat_eez at May 08, 2014 06:08 AM (TOb4i)
Posted by: phoenixgirl @phxazgrl at May 08, 2014 06:08 AM (u8GsB)
Posted by: willow at May 08, 2014 06:09 AM (nqBYe)
Posted by: Navycopjoe at May 08, 2014 06:09 AM (EoOgl)
Posted by: D-Lamp at May 08, 2014 06:10 AM (bb5+k)
Posted by: Soothsayer § at May 08, 2014 06:10 AM (hIntH)
Posted by: willow at May 08, 2014 06:10 AM (nqBYe)
...Posted by: sock_rat_eez"
They are NOT unserious, they are complicit. They are fully part of this fraud and as such simply another gear in the machine of state tyranny. Of course I am speaking of the leadership and the party, not the individuals, yes there are some in the party that do stand for our rights, but they are too few and too powerless.
The GOP are not useless, they are as fully guilty as any of them.
Posted by: Simon White-Thatch Potentloins at May 08, 2014 06:12 AM (NnjE8)
for cripe's sakes
Where's Ace?
Posted by: Soothsayer § at May 08, 2014 10:11 AM (hIntH)
Are you kidding? It's before noon Eastern. Won't see Ace for another couple of hours at least.
Posted by: joncelli at May 08, 2014 06:12 AM (RD7QR)
Posted by: Soothsayer § at May 08, 2014 06:12 AM (hIntH)
Posted by: D-Lamp at May 08, 2014 06:13 AM (bb5+k)
Posted by: eman at May 08, 2014 06:13 AM (EWsrI)
Posted by: [/i] [/s] [/u] [/b] An Observation at May 08, 2014 06:14 AM (ylhEn)
Posted by: Navycopjoe at May 08, 2014 06:14 AM (HcEdR)
Posted by: Soothsayer § at May 08, 2014 06:14 AM (hIntH)
Criminal contempt of congress is supposed to go to the DC circuit w/o going through the DOJ. i.e. Holder
Posted by: Vic[/i] at May 08, 2014 06:15 AM (T2V/1)
Posted by: willow at May 08, 2014 06:15 AM (nqBYe)
Posted by: Vic[/i] at May 08, 2014 06:16 AM (T2V/1)
Posted by: Soothsayer § at May 08, 2014 06:16 AM (hIntH)
Posted by: D-Lamp at May 08, 2014 06:17 AM (bb5+k)
Posted by: Vic"
They could do the same thing to Holder, and should.
Imagine for a second it was the Democrats in this position working against conservatives who they have found in contempt and refusing to move. What ends do you think they would stop at?
Posted by: Simon White-Thatch Potentloins at May 08, 2014 06:18 AM (NnjE8)
Posted by: Soothsayer Hendrix § at May 08, 2014 06:18 AM (hIntH)
Posted by: sock_rat_eez at May 08, 2014 06:18 AM (MmiWV)
>>>Libertarians philosophy always leads to these paradoxical situations with victims
?? Capital-L Libertarian is a political philosophy, not a social one.
Posted by: Bigby's Flappy Hands at May 08, 2014 06:18 AM (3ZtZW)
Posted by: Warren Bonesteel at May 08, 2014 06:18 AM (q6kaG)
Posted by: D-Lamp at May 08, 2014 06:19 AM (bb5+k)
Posted by: An Observation at May 08, 2014 10:14 AM (ylhEn)
*Golf clap* Extra points for being bitter and funny all at once.
Posted by: joncelli at May 08, 2014 06:19 AM (RD7QR)
Sending mobs to their homes to harass and intimidate them would be the first move. Look what they did to the CEO's of banks and companies they didn't like.
Posted by: EC at May 08, 2014 06:19 AM (GQ8sn)
"Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."
Whew. Good thing the GOP is moral, amirite?
Posted by: Bigby's Flappy Hands at May 08, 2014 06:21 AM (3ZtZW)
Posted by: Daybrother at May 08, 2014 06:21 AM (1bNel)
Posted by: eman at May 08, 2014 06:21 AM (EWsrI)
Posted by: Max Power at May 08, 2014 06:21 AM (QCc6B)
Posted by: Citizen X at May 08, 2014 06:21 AM (7ObY1)
Posted by: Wendy Davis at May 08, 2014 06:21 AM (DrWcr)
Posted by: willow at May 08, 2014 06:21 AM (nqBYe)
Posted by: Citizen X at May 08, 2014 06:22 AM (7ObY1)
Posted by: blaster at May 08, 2014 06:23 AM (h7Onx)
Posted by: Soothsayer Hendrix § at May 08, 2014 06:24 AM (hIntH)
Posted by: Bigby's Flappy Hands at May 08, 2014 06:24 AM (3ZtZW)
Posted by: D-Lamp at May 08, 2014 06:24 AM (bb5+k)
Posted by: willow at May 08, 2014 06:24 AM (nqBYe)
Issa is a clown.
You know what Issa's gonna do next? The same f'n thing he's done since day one: put the scandal on the back-burner for another 2 months.
Posted by: Soothsayer § at May 08, 2014 10:16 AM (hIntH)
Try 5 months. Need to have it ready for the November elections.
Posted by: buzzion at May 08, 2014 06:25 AM (LI48c)
Posted by: willow at May 08, 2014 06:26 AM (nqBYe)
Posted by: Iblis at May 08, 2014 06:26 AM (U0ndG)
Posted by: Soothsayer Hendrix § at May 08, 2014 06:26 AM (hIntH)
Posted by: Citizen X at May 08, 2014 06:27 AM (7ObY1)
1) Never trust a woman named Michelle
2) Women who sport bangs are crazy and lie like the dickens.
Posted by: Fritz at May 08, 2014 06:27 AM (UzPAd)
Posted by: sock_rat_eez at May 08, 2014 06:27 AM (MmiWV)
Someone quoted "sound and fury, signifying nothing" upthread.
I'm afraid that's it. I keep getting excited by Issa and teh Gowdy and nothing keeps happening.
But thanks, Gabe, for the elucidation. Knowing stuff is good.
Posted by: Frumious Bandersnatch at May 08, 2014 06:27 AM (JtwS4)
Posted by: Kreplach at May 08, 2014 06:27 AM (8tAEF)
Posted by: Bigby's Flappy Hands at May 08, 2014 06:28 AM (3ZtZW)
Posted by: phoenixgirl @phxazgrl at May 08, 2014 06:28 AM (u8GsB)
Posted by: Iblis at May 08, 2014 10:26 AM (U0ndG)
I have my top men on it...TOP. MEN.
Posted by: Chief D. Issa Bigspeak at May 08, 2014 06:28 AM (M+evy)
It's before noon Eastern. Won't see Ace for another couple of hours at least.
Posted by: joncelli
But before it's dark
He'll have every picnic basket that's in Jellystone Park.
Posted by: Laurie David's Cervix at May 08, 2014 06:29 AM (kdS6q)
Posted by: Insomniac at May 08, 2014 06:29 AM (DrWcr)
Posted by: Citizen X at May 08, 2014 06:29 AM (7ObY1)
Posted by: eman at May 08, 2014 06:30 AM (EWsrI)
Posted by: RWC at May 08, 2014 06:30 AM (fWAjv)
Posted by: Iblis at May 08, 2014 10:26 AM (U0ndG)
As Soothsayer said, it's squirrels all the way down.
Posted by: [/i]KG at May 08, 2014 06:30 AM (p7BzH)
Yeah, I believe he's an O-bot. Still funneh. Maybe even Horde-worthy.
Patton Oswalt ✔ @pattonoswalt
Follow
The FUCK is wrong with me? Last Tweet deleted. The victims of the Holocaust deserve our highest respect, not penis limericks.
1:03 PM - 7 May 2014
Posted by: Citizen X at May 08, 2014 10:27 AM (7ObY1)
Probably more of a liberal than a progressive. After all he tweeted an agreement with a Mark Steyn article. And he was attacked for it. I do consider him to mostly be an annoying jackass though.
And I wonder how many tweet responses he's gotten from liberal fans denying the Holocaust.
Posted by: buzzion at May 08, 2014 06:30 AM (LI48c)
Posted by: Soothsayer Hendrix § at May 08, 2014 06:31 AM (hIntH)
Posted by: Daybrother at May 08, 2014 06:31 AM (1bNel)
I disagree with those who think going after Lerner is a pointless exercise. The thing to do when facing off against hardcore, old-school, Leftist true believers is not to let up, to keep the pressure on, to come at them all the time from every possible angle. After all, that's what they do. This business of throwing up our hands and bewailing the uselessness of resistance is defeatist crap, loser talk.
Posted by: troyriser at May 08, 2014 06:31 AM (gNlvW)
Posted by: Lincolntf at May 08, 2014 06:31 AM (ZshNr)
Posted by: Frumious Bandersnatch at May 08, 2014 06:31 AM (JtwS4)
Posted by: RWC at May 08, 2014 06:31 AM (fWAjv)
Posted by: RWC at May 08, 2014 10:30 AM (fWAjv)
That should be our new flaming skull for any stories of progtards getting pwned.
Posted by: EC at May 08, 2014 06:32 AM (GQ8sn)
Why do I keep seeing the same recycled post from Gabe?
I'm with the other Morons who say ultimately this doesn't mean shit. It's a lovely philosophical exercise which is why dissecting it appeals to lawyers, but let's be real....Lerner isn't going to jail. She isn't going to lose her pension. She is a government official who corrupted her position, declined to answer to We The People about how she did her job, and will get away with it because it's easier to ignore and forget.
Writing lengthy tracts on the ins and outs of "contempt" mean precisely shit.
Posted by: @JohnTant at May 08, 2014 06:33 AM (eytER)
Posted by: Soothsayer Hendrix"
Megyn Kelly would make a good robot.
Posted by: Simon White-Thatch Potentloins at May 08, 2014 06:33 AM (NnjE8)
Posted by: LoneStarHeeb at May 08, 2014 06:34 AM (BZAd3)
Posted by: Soothsayer Hendrix § at May 08, 2014 06:34 AM (hIntH)
But the "Libertarian" brand is not one I'd adopt these days.
Big-L Libertarian brand is tarnished. Potheads and Paulbots is the perception, fair or otherwise.
I advocate libertarian positions to move the Overton window in both parties toward a more freedom-embracing perspective. I have no particular love for the GOP.
Posted by: Frumious Bandersnatch at May 08, 2014 06:34 AM (JtwS4)
Posted by: RWC at May 08, 2014 06:35 AM (fWAjv)
Posted by: Fewenuff at May 08, 2014 06:35 AM (zPNX5)
Posted by: Insomniac at May 08, 2014 06:35 AM (DrWcr)
Posted by: willow at May 08, 2014 06:35 AM (nqBYe)
Posted by: Soothsayer Hendrix § at May 08, 2014 06:35 AM (hIntH)
Posted by: phoenixgirl @phxazgrl at May 08, 2014 06:36 AM (u8GsB)
Posted by: Soothsayer Hendrix § at May 08, 2014 06:36 AM (hIntH)
Posted by: FenelonSpoke at May 08, 2014 06:36 AM (XyM/Y)
Posted by: I lurk, therefore I amn't at May 08, 2014 06:37 AM (Lw8s7)
Posted by: sock_rat_eez at May 08, 2014 06:37 AM (MmiWV)
Posted by: Simon White-Thatch Potentloins at May 08, 2014 10:33 AM (NnjE
I think women are lucky a robot isn't merely defined as requiring batteries.
Or that an unbalanced washing isn't a robot.
Otherwise that 1 in 5 number would be way way too low.
And you're welcome willow
Posted by: buzzion at May 08, 2014 06:37 AM (LI48c)
Posted by: willow at May 08, 2014 06:37 AM (nqBYe)
Posted by: LoneStarHeeb at May 08, 2014 06:37 AM (BZAd3)
Posted by: sock_rat_eez at May 08, 2014 06:38 AM (MmiWV)
Posted by: Soothsayer Hendrix"
Everything we hear is theater, that's all. Nothing will be done until they are forced to do something, and I don't see that happening.
We are pretty much fucked. That's why I'm starting to think about building a robot factory.
Posted by: Simon White-Thatch Potentloins at May 08, 2014 06:38 AM (NnjE8)
Posted by: Lincolntf at May 08, 2014 06:38 AM (ZshNr)
Posted by: Wendy at May 08, 2014 06:38 AM (KydDZ)
Posted by: willow at May 08, 2014 06:39 AM (nqBYe)
do nothing at all?
so what would that leave the people that are attempting to help the system function from the outside with actual power or drawing people in to have a voice?
Posted by: willow at May 08, 2014 10:35 AM (nqBYe)
Well, some such people tried.... with the only weapon left in the arsenal, the shutdown. But that just won't do because it upsets the gravy train that both parties are on.
Since nothing can really be done without the cooperation of the Dems, and given that the Dems will not agree to anything that pleases us, then nothing *can* be done that furthers our interests. Except refusing to play the game, but we've seen how *they* take that.
Posted by: [/i]KG at May 08, 2014 06:39 AM (p7BzH)
Posted by: Kreplach at May 08, 2014 06:39 AM (8tAEF)
Posted by: Iblis at May 08, 2014 06:40 AM (U0ndG)
Posted by: whoever at May 08, 2014 06:41 AM (pjMym)
Posted by: Mike Hammer at May 08, 2014 06:41 AM (aDwsi)
Posted by: RWC at May 08, 2014 06:41 AM (fWAjv)
Posted by: willow at May 08, 2014 06:42 AM (nqBYe)
Posted by: Jinx the Cat at May 08, 2014 06:42 AM (l3vZN)
Posted by: LoneStarHeeb at May 08, 2014 06:42 AM (BZAd3)
Posted by: willow at May 08, 2014 06:43 AM (nqBYe)
Posted by: --- at May 08, 2014 06:43 AM (MMC8r)
Posted by: sock_rat_eez at May 08, 2014 06:44 AM (MmiWV)
Posted by: willow at May 08, 2014 06:44 AM (nqBYe)
Posted by: Brass Bancroft at May 08, 2014 06:45 AM (RHLfG)
Posted by: willow at May 08, 2014 06:47 AM (nqBYe)
Posted by: Iblis at May 08, 2014 06:49 AM (U0ndG)
Posted by: Todd Bridges, first to go bad, last to go down at May 08, 2014 06:52 AM (JOFI1)
Posted by: JackStraw at May 08, 2014 06:54 AM (g1DWB)
Posted by: D-Lamp at May 08, 2014 06:55 AM (bb5+k)
Posted by: LoneStarHeeb at May 08, 2014 06:58 AM (BZAd3)
Posted by: Vashta Nerada at May 08, 2014 07:04 AM (ZkzmI)
Posted by: LoneStarHeeb at May 08, 2014 07:05 AM (BZAd3)
Posted by: whoever at May 08, 2014 07:05 AM (pjMym)
Posted by: Mary Cloggenstein from Brattleboro, VT at May 08, 2014 07:15 AM (9ls8w)
Posted by: Mary Cloggenstein from Brattleboro, VT at May 08, 2014 07:18 AM (9ls8w)
Posted by: Dack Thrombosis at May 08, 2014 07:39 AM (oFCZn)
Posted by: eman at May 08, 2014 07:57 AM (EWsrI)
Posted by: eman at May 08, 2014 08:00 AM (EWsrI)
So Lassie went for help - managing to avoid the Dog Catcher, the EPA and OSHA officials who wanted to cite her for improperly filled out paper work which endangered the Desert Toad and for not wearing an approved safety helmet and not using a regulation doggy safety seat while riding in automobiles.
Finally Lassie got to Timmy's parents house but no one was home. Lassie ran back to the well and dived in. She fought the rattler, and despite receiving mortal wounds killed it. She crawled over to her dying friend and licked his cheek.
Timmy stirred from his stupor and with dying gasp said "I know you did your best girl, thank you, and do you know if amnesty passed?"
"Rut the Ruck" said Lassie.
Posted by: [/i] [/s] [/u] [/b] An Observation at May 08, 2014 08:03 AM (ylhEn)
Posted by: Chris Balsz at May 08, 2014 11:49 AM (5xmd7)
Posted by: Barry Teller at May 09, 2014 04:42 AM (gjDru)
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Posted by: FenelonSpoke at May 08, 2014 05:51 AM (XyM/Y)