I plead the Fif! I plead the Fif!

[telemann.livejournal.com]

Comic Dave Chappelle's sketch on pleading the 5th before Congress is a classic, and it's a timely one too, because this week IRS official Lois Lerner (or as Colbert described her, Superman's former girlfriend) gave an opening statement to Congress, and refused to participate in the House investigation, and pleaded the fifth.





Personally, the only time I have ever seen someone plead the 5th was usually old footage of mobsters testifying before Congress (and duplicated in some of the Godfather movies), and usually the connotation always was "someone is obviously so guilty, who are they kidding, so that's the real reason they're going silent." And some of that was already kicking in when I initially saw Ms. Lerner's statement on the news, my heart sank and I thought "Wait, so what's she hiding!?"

We all hear a lot in the news and discussions about the really 3rd rail issues with the 1st and 2nd amendment, but the 5th certainly isn't considered a red button issue for many. And it's certainly not one a polarizing one. Yesterday on MSNBC The Spin Cycle's guest spot, Prof. James Duane from Regent University (a private conservative university / law school operated by Pat Robertson in Virginia Beach, Virginia) had a pretty interesting collequim on explaining what the 5th is, and how its one of the most misunderstood but in today's "over-criminalized" society, one of the most vitally important for a citizen because there are tens of thousands of statues and federal regulations that a person can break and not even know it.

Ms. Lerner's refusal to co-operate certainly raised the ire of Darryl Issa (the chairman of the House Committee, and a guy who knows the very important difference between acts of terror and terrorist attacks) believes that because Ms. Lerner gave an opening statement, she's lost her immunity to testify (i.e. plead the 5th). While Rep. Issa is a strong defender of the Bill of Rights and (every car owner to own one of his car alarms), he has no training in the law and apparently doesn't know how the 5th works, or Supreme Court decisions about what the 5th means for all of us.


Prof Duane explains all of this quite elegantly and isn't dry-as-toast-boring as you would expect any explanation of the law; and thought Ms. Lerner's example provided a great learning opportunity for most Americans. For my part, I learned that the 5th isn't limited to just criminal trials or Congressional hearings, but can be used at any level, even one on one with a police officer or any government official. And as Prof. Duane points out, seeing an official of the IRS invoke the 5th is richly ironic, considering the grief and fear they've caused ordinary citizens all the time. When conservative S.E. Cupp asked about a charge of perjury being brought against Ms. Lerner, Prof. Duane's answer may surprise you.

The video is behind this cut. And if it doesn't embed properly, click here for a direct link.

Comments

[a-new-machine.livejournal.com]

Eh, it's not open and shut. Orin Kerr, a constitutional law expert (particularly on 4th and 5th Amendment law) believes it's an open question (http://www.volokh.com/2013/05/22/can-a-congressional-witness-deny-guilt-and-then-plead-the-fifth/), because it's never been directly addressed before.

[telemann.livejournal.com]

Eh, James Duane is a 5th amendment law as well, and he said otherwise. And the head of the committees legal team couldn't give any legal justification that indicated how Ms.Lerner lost her immunity.

[a-new-machine.livejournal.com]

All that Duane and Kerr's disagreement indicates to me is that there may actually be some conflict over this question's current status. That's the only point I was trying to make.

[telemann.livejournal.com]

From what I can tell of my skimming online, this is one case where there's a lot of agreement between conservative lawyers and strict constitutionalists and "liberal" lawyers, unlike say in discussions regarding the 2nd amendment. And Duane is conservative lawyer, that's why I find what he says so compelling (Harvard Law magna cum laude, Phi Beta Kappa, a member of the Federalist Society, contributing editor to Black's Law, and a professor at Regent University etc etc etc).

[a-new-machine.livejournal.com]

Yeah, entirely possible that Kerr's out in the cold on this one. In the end, I bet it's something for law profs to talk about in blogs, rather than a live legal issue, if only because Issa isn't likely to push it far enough to get a judge's opinion.

[telemann.livejournal.com]

In a few weeks, it's not going to matter. The new fight will switch to the Senate where Harry Reid said he's got the votes now to use the nuclear option on *judicial nominees* and if Republican's don't stop blocking or holding them up, he's going to start going nuclear. The threat has worked already since McConnell backed down on holding up Sri Srinivasan's nomination.

[a-new-machine.livejournal.com]

I actually saw a TV ad in support of the filibustered nomination of the new EPA administrator. The Senate is pretty goddamned dysfunctional these days.