Limited Immunity: The Smart Way to Go

Carol Platt Liebau
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Posted: May 22, 2013 2:57 PM

It was wrong-headed to allow Lois Lerner to appear before Government Oversight Committee, made a self-serving statement, invoke the Fifth Amendment once and then withdraw in wounded, arrogant triumph.

But the idea that she can now be forced to answer questions -- on the theory that her statement constituted a waiver of her Fifth Amendment rights -- is, unfortunately in this case, not viable.

First of all, as a legal matter, Fifth Amendment waivers have to be knowing, intelligent and voluntary.  What's more, a witness can actually begin answering questions, and then invoke the Fifth. So it's hard to see how just making an opening statement would qualify as an overall waiver.

As a strategic matter, Congress can try to force Lerner to testify, she can refuse, and the whole matter can go into legal limbo for some unspecified time (before Congress would, in all likelihood, lose).  Whose strategic interests are served by delay?  The IRS" and the administration's.  It's almost enough to make you wonder if this isn't just litigation bait.

Wouldn't it just be smarter for the committee to offer Lerner qualified immunity -- requiring her to testify but promising that she cannot be prosecuted with evidence obtained during the hearing?

In fact, this alternative seems best particularly in light of today's revelations that the IRS knew of the targeting scheme through an internal investigation six months before the election.  Given the extensive contacts between IRS and the Treasury -- and the White House -- about the roll-out of the IG report (and all the apparent concern for political appearances), it's really worth knowing whether Lerner or anyone else at the IRS tipped off the administration about the results of their own probe back in May of 2012, fully six months before the election.