Rep. Trey Gowdy (R-S.C.) became a viral sensation on Wednesday with his tough questioning of former IRS head Doug Shulman during a House hearing on the IRS targeting of conservatives.
And if you liked him then, you may love him today after he delivered an interview where he was able to sneak in a Jack Bauer reference.
Lois Lerner, the IRS official at the center of the increasingly serious IRS scandal, caused a stir on Wednesday after she declared her innocence before the House Oversight and Government Reform Committee and then invoked her Fifth Amendment right to remain silent.
She steadily refused to answer the committee’s questions and was later excused from the hearing by Congressman Darrell Issa, R-Calif.
However, Lerner’s decision to claim innocence in her opening remarks has raised some people questioning whether she accidentally waived her Fifth Amendment right.
“You don’t get to say, ‘I didn’t rob the bank but I’m not going to answer the prosecutor’s questions,’” Gowdy, a former federal prosecutor, explained in an interview Thursday morning. “That would never happen.”
Rep. Gowdy continued, explaining Rep. Issa’s options.
“Let’s play this out. Let’s assume he brings her back. I promise she’s not going to make the same mistake today that she made yesterday,” he said. “She’s going to invoke — you can’t make someone talk unless you’re name is Jack Bauer.”
“You can’t force some to talk,” Gowdy continued. “You can’t make people talk unless you’re will to do what Jack Bauer does.”
Jack Bauer is the main character in the hit Fox TV series “24,” an action-drama about counterterrorism in the US. Played by Kiefer Sutherland, Bauer is an agent with the fictional Counter Terrorist Unit who “plays by his own rules,” “is a one-man wrecking crew,” etc.
“So are we going to hold her in contempt? Are we going to put her in jail? Are we going to offer her immunity, which I would not be a fan of, or are we going to try to build a case without using her testimony?” the congressman asked.
Gowdy continued, adding that these questions will be reviewed and answered at the chairman speaker level:
The South Carolina congressman isn’t alone in thinking Lerner may have accidentally waived her Fifth Amendment right. Harvard law professor Alan Dershowitz said Wednesday that she could be held in contempt of court and jailed for refusing to testify before Congress.
“She’s in trouble. She can be held in contempt,” Dershowitz told the “Steve Malzberg Show.” “Congress . . . can actually hold you in contempt and put you in the Congressional jail.”
“You can’t simply make statements about a subject and then plead the Fifth in response to questions about the very same subject,” he added. “Once you open the door to an area of inquiry, you have waived your Fifth Amendment right . . . you’ve waived your self-incrimination right on that subject matter.”
“The law is as clear as could be, that once you open up an area of inquiry, you can’t shut off the spigot – that’s the metaphor that the Supreme Court has used,” he said.
However, a few pundits think there may be a problem with this argument.
“While you may not selectively invoke the 5th in a criminal trial, you probably can at a Congressional hearing, so she won’t be held in contempt,” the Ace of Spades HQ blog notes.
“She will, however, be made to look awful, which sounds about right,” it adds.
Then there’s this from New York magazine:
First, unlike in a trial, where she could choose to take the stand or not, Lerner had no choice but to appear before the committee. Second, in a trial there would be a justifiable concern about compromising a judge or jury by providing them with “selective, partial presentation of the facts.” But Congress is merely pursuing information as part of an investigation, not making a definitive ruling on Lerner’s guilt or innocence.
“When somebody is in this situation,” says Duane, a Harvard Law graduate whose 2008 lecture on invoking the Fifth Amendment with police has been viewed on YouTube nearly 2.5 million times, “when they are involuntarily summoned before grand jury or before legislative body, it is well settled that they have a right to make a ‘selective invocation,’ as it’s called, with respect to questions that they think might raise a meaningful risk of incriminating themselves.”
In fact, Duane says, “even if Ms. Lerner had given answers to a few questions — five, ten, twenty questions — before she decided, ‘That’s where I draw the line, I’m not answering any more questions,’ she would be able to do that as well.” Such uses of selective invocation “happen all the time.”
And this excerpt from Hot Air is worth considering:
What happens when Issa brings her back and the questions begin? Could be that she’ll cave and start answering, but I assume her lawyer will tell her to take the Fifth again, in which case it’s Issa’s move. He could try to hold her in contempt, which would probably ignite a court battle and would certainly ignite lots of media concern-trolling about the GOP crushing Lerner’s rights as a way to change the subject from the underlying scandal. The court battle would slow down the investigation and might spark a bit of public sympathy for Lerner and the IRS…
Politically, it might even be worth losing the court battle: Litigation will only call more attention to the fact that Lerner doesn’t want to talk for mysterious reasons, which makes the IRS’s actions look that much shadier.
… why not bring her back and make her sit through an hour or so of serially re-asserting her privilege to dozens of questions? Worst-case scenario, the dodginess of the spectacle puts even more pressure on the IRS. Best-case scenario, she’ll decide to answer questions selectively, which will add a bit more information to what the committee knows.
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Featured image IGN and AP photos.