Thursday, May 23, 2013

Why are Republican lawyers so dumb about the law?

There is no IRS scandal (see "Mass nervous breakdown over IRS review," May 21) but there is a little mini-scandal about the grandstanding congressional inquiry into the imaginary scandal.

A Republican congressman who claims to be a former prosecutor, and therefore, one would suppose, someone familiar with the rules of court procedure, thinks Lois Lerner abandoned her Fifth Amendment protections by stating to Rep. Darrell Issa's witchhunt squad that she had not done anything wrong. She did not say what she had done. That is an important factoid.

The volkisch view of the 5th, absorbed by older Americans via noir detective films, is not anything like the actual, legal meaning of the Amendment. If you are a witness in court, even if you have not been charged with anything, you have to invoke (a more proper term than the usual "plead") the 5th at the start.

Give your name and address and invoke the 5th. Do anything further, and the judge will likely direct you to answer the prosecutor's questions.

This is to protect the boundaries of cross-examination.

Issa, no lawyer though he's had a lot of time in court as a miscreant where he might have picked up a notion or two, at first rejected Rep. Cordray's plea for doing cross. Later, realizing he'd missed a chance to smear someone, he said he might change his mind.

Informed, as opposed to congressional, opinion, is trending toward the actual, legal use of the 5th.

A full-throated liberal statement is here. But even libertarians (a libertarian is a Republican who has read a book) are kinda, sorta OK with the traditional view of the jurisconsults.

On the other hand, a certified liberal with a long memory says Lerner can be put in the calaboose, because it is a well-established (by the Warren Court, no less, those leftists) that a witchhunting congressperson can throw you in durance vile anyhow, and the Constitution be damned.

RtO is with rightwingers like Professor Orin Kerr on this one: Lerner's statement does not contain anything she could be cross-examined on (because there are rules about cross procedure, too).

But in a practical matter, we're betting the liberal Professor Alan Dershowitz is correct and Lerner will become another martyr to neo-McCarthyism.


  1. This comment has been removed by the author.

  2. RtO is with rightwingers like Professor Orin Kerr on this one: Lerner's statement does not contain anything she could be cross-examined on (because there are rules about cross procedure, too).

    From the link you didn't provide:

    The tricky part is how to characterize Lerner’s testimony before she invoked the Fifth Amendment. On one hand, if you say that Lerner merely expressed her view that she is innocent but did not actually testify as to any facts, then you could say she did not waive her rights with her statement. Questioning would not be about the details of facts she already testified to, but rather would require her testimony on a subject she declined to testify about. On the other hand, if you say that Lerner’s reciting the allegations and then denying them effectively testified about the allegations, then you could say that she did testify and did waive her rights. From that perspective, she already testified about “the subject” by saying that she did not violate any IRS rules or submit false testimony, and further questioning would be about the details of why she thinks that.

    I’m not enough of a Fifth Amendment nerd to have strong views on which side is right. So I posed the question earlier today (based on press reports of what Lerner said, not the full transcript) to a listserv of criminal procedure professors that includes some serious Fifth Amendment experts. Opinions were somewhat mixed, but I think it’s fair to say that the bulk of responders thought that Lerner had not actually testified because she gave no statements about the facts of what happened. If that view is right, Lerner successfully invoked her Fifth Amendment rights and cannot be called again. But this was not a unanimous view, it was not based on the full transcript, and there are no cases that seem to be directly on point. So it’s at least a somewhat open question.

    Perhaps you should read more closely.