Lerner, the IRS unit chief overseeing tax-exempt applications, advised the committee, through her counsel, that instead of testifying, she would be claiming her Fifth Amendment privileges against self-incrimination. Everything was scripted and choreographed. All she had to do was to appear and state, “I refuse to answer on the grounds that it may tend to incriminate me,” in reply to each question submitted by the committee members.
But Lerner went off-script.
She instead began with what she referred to as an “opening statement denying any wrongdoing and professing pride in her government service,” according to Politico.
Politico’s Rachael Bade reported:
“I have not done anything wrong,” said Lerner, who triggered the IRS scandal on May 10 by acknowledging that the agency had singled out conservative groups applying for tax exemptions. “I have not broken any laws. I have not violated any IRS rules or regulations, and I have not provided false information to this or any other committee.”
Although opening statements aren’t normally considered evidence, there was nothing normal about these circumstances.
An opening statement outlines what the person intends to prove. The problem was, she didn’t intend to prove anything — she was going to take the Fifth. So if it wasn’t an opening statement, there’s only one thing it could have been — testimony. Oh, oh.
She had, by so doing, opened the door to questioning wide enough that committee chairman Darrell Issa, R-Calif., is planning to invite her back for another go-around.
“When I asked her her questions from the very beginning, I did so so she could assert her rights prior to any statement,” Issa told Politico. “She chose not to do so — so she waived.”
Once she began testifying, it was and is totally within the purview of the committee members to cross-examine her on those matters to which she herself testified. And if she stubbornly refuses to answer next time, she can be held in contempt of Congress.
Harvard law professor Alan Dershowitz succinctly outlines the law with respect to waiving one’s Fifth Amendment privileges in the following clip.