Committee Chairman Darrell Issa (R) of California excused her after this and warned lawmakers that they should not see Lerner’s refusal to talk as evidence of guilt. But some other panel members said that by asserting her side of the story, she had, in fact, waived her Fifth Amendment rights and so should be forced to talk.
“You don’t get to tell your side of the story and then not be subjected to cross-examination. That’s not the way it works,” said Rep. Trey Gowdy (R) of South Carolina, a former federal prosecutor. “[Lerner] waived her right to Fifth Amendment privilege by issuing an opening statement. She ought to stand here and answer our questions.”
At the end of the session, Chairman Issa said he agreed that Lerner “may have waived” her rights and that he was looking into the possibility of recalling her and trying to make her answer questions.
Legal experts say it’s not clear whether Lerner is now in deep trouble. Some noted that she had been tempting fate by talking, even a little, about her side of the case.
The key question here is whether Lerner was simply asserting her opinion that she is innocent or whether she was testifying about her version of the facts of the case, writes Orin Kerr, a professor at the George Washington University School of Law, on The Volokh Conspiracy legal blog.
Professor Kerr canvassed some criminal procedure law professors for their views on that matter.
“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,” Kerr writes. “If that view is right, Lerner successfully invoked her Fifth Amendment rights and cannot be called again.”
The view of these experts wasn’t unanimous, so the question remains an open one, Kerr concluded. It’s worth pointing out that Congress is not a federal courtroom. It is often a court of political opinion, and that is the basis by which Lerner ends up being judged.