Did Lois Lerner waive her Fifth Amendment protection?

William Taylor III, the lawyer Lois Lerner selected to represent her before the House Oversight & Government Reform Committee, is part of a firm that’s about as tight with the Obama administration as it could be. According to Washingtonian Magazine, the firm, a boutique litigation shop called Zuckerman Spaeder, has sent a higher percentage of partners into the Obama administration than any other law firm.

But did Lerner’s lawyer do her a disservice today by having her make an opening statement in which she denied all wrongdoing? Rep. Trey Gowdy certainly thought so. He argued that, by denying any wrongdoing, Lerner waived her right to assert the Fifth Amendment. The theory is that a witness cannot affirmatively assert her innocence and then dodge examination about that assertion through a privilege claim.

Committee chairman Issa says he’s looking into the question of whether Lerner’s assertion of her innocence, coupled with her authentication of certain documents, constitutes a waiver. If Issa and committee counsel conclude that it does, he presumably will recall Lerner as a witness.

But Lerner’s denial of guilt was extremely general. It involved no statements about specific facts. In that sense, it seemed more analogous to a plea of “not guilty” (though there are no pleas at a congressional committee hearing) than to substantive testimony.

Does this mean that she didn’t waive the Fifth Amendment after all? To me, it seems like a close question.

That’s also the conclusion reached by Orin Kerr at the Volokh Conspiracy. Kerr contacted a list of criminal procedure professors that, he says, includes some serious Fifth Amendment experts. The result?

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.

Since the question is unsettled and probably close, it seems to me that Lerner was not well-served today by her counsel, however well-connected to the Obama administration it may be.

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