We are fortunate that Representative Trey Gowdy (R-SC) (@TGowdySC) sits on the Oversight and Government Reform Committee and that Chairman Darrell Issa (R-CA) (@DarrellIssa) encourages Rep. Gowdy to do what he does best, interrogate and summate. During yesterday’s full Committee business meeting, Rep. Gowdy launched into one of his best summations on why IRS’s Lois Lerner waived her right to Fifth Amendment protection from self-incrimination. Listen here and read along below.
At first blush, the prospect of us having another hearing almost seems irresistible except for the fact that that additional hearing would not disclose one single solitary relevant fact. All facts necessary or would be at the disposal of this Committee are already in the record. Ms. Lerner is not coming back. And Mr. Chairman I don’t need law professors to come for a second hearing and read me the case law. There’s not gonna be one additional fact uncovered at a second hearing. So what facts do we have at our disposal?
Mr. Chairman, I have identified nine separate specific assertions made by Lois Lerner on May the 22nd and that was after she asserted her right against privilege, nine separate factual assertions, including Mr. Chairman:
I have done nothing wrong.
I have broken no law.
I have provided no false information to Congress.
I have violated no IRS rules.
I have violated no IRS regulations.
And then Mr. Chairman, she also authenticated a document. All of this Mr. Chairman, after she invoked her right to remain silent. Nine separate factual assertions and the authenticating of a document after, with the advice of counsel I hasten to add. With the advice of counsel sitting right behind her she testified to nine separate factual assertions, then authenticated a document. So, Mr. Chairman, the case law to me is clear. That is not the way the Fifth Amendment works. You don’t get to tell your side of the story and then avoid the very process that we have in this system for eliciting the truth which is cross-examination.
Why do we have a confrontation clause? To my colleagues on the other side of the aisle, why do we have a confrontation clause? Because cross-examination is the best technique, the best tactic for eliciting the truth. And every witness has to sit on the stand and they have to weigh and balance: ‘What are the benefits of saying nothing, which is my right?’ or ‘What are the benefits of getting my side of the story out?’ That’s what you have to balance. Saying nothing versus telling your side of the story. But Mr. Chairman there is no contemplation in the Constitution that you tell your side of the story and you’re never cross-examined and the Supreme Court agrees with us. Mr. Chairman, these are just two quotes from the Supreme Court:
A witness may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details.
Similarly, in Brown vs. United States,
A witness waives the privilege by voluntarily giving exculpatory testimony. A denial of activities that might provide a basis for prosecution constitutes a waiver of that privilege.
Yes she has a Fifth Amendment right to remain silent. She sat there and could have said nothing. We had a witness this week who did that. We had a witness this week who said nothing. She didn’t. She made nine separate factual assertions and then she authenticated a document. If that is not waiver, if that is not express waiver, then surely it’s implied waiver. And if it’s not implied waiver, what is?
If giving your side of it, nine separate facts and, Mr. Chairman, I have to add this, because aside from several factual assertions, this witness volunteered, and this is important, she testified that she has done ‘nothing wrong’. I know my friends on the other side of the aisle will conclude that that is an amazingly broad statement. It’s tantamount to a double negative. ‘I’ve done nothing wrong.’ So let’s flip it around. What she’s really saying is ‘I have done everything right.’ To say ‘I’ve done nothing wrong’ is to really say ‘I have done everything right.’ So Mr. Chairman, what possibly could be a broader assertion of fact than to say ‘I have done everything right.’
I wanna say this in conclusion because my time is almost up. I have had private conversations with colleagues on the other side of the aisle whose opinion I respect very much. And I’m not gonna disclose those private conversations other than to say I benefit from their counsel there’s some very, very good attorneys on the other side of the aisle as there are on this side of the aisle. The way I view this Mr. Chairman, is this is Congress asserting its Constitutional obligation to provide oversight. Yes she has a Constitutional right to remain silent and she could have invoked it but she did not and we have a Constitutional obligation to provide oversight.
So we can have another hearing. I have great respect for the gentlelady from the District of Columbia but let’s be honest with each other. There’s not gonna be one more fact that’s part of this record, not one. We’re gonna bring a law professor that says she waived, your gonna bring a law professor that says she did not and we’re gonna be right back where we are today. All that facts that we’re gonna have are here right now; nine separate factual assertions. If that is invoking your right to remain silent, then there is no such thing as waiver.
By: Sandy (@Orangeone4)