(WASHINGTON) — After a key IRS official Wednesday invoked her Fifth Amendment right not to incriminate herself during congressional testimony, Oversight and Government Reform Chairman Darrell Issa said he will review legal precedent in order to determine whether Lois Lerner, the director of Exempt Organizations at the IRS, could be held in contempt of Congress.
Although Lerner, who’s at the center of the controversy, refused to answer questions from members of the committee, she read a brief statement into the record declaring her innocence. Furthermore, at the request of Issa, Lerner authenticated a document containing her written answers for the inspector general’s investigation of the matter.
Those actions prompted members of the committee to question whether Lerner effectively waived her right to invoke the Fifth Amendment.
“She just testified. She just waived her Fifth Amendment right to privilege,” Rep. Trey Gowdy, R-S.C., a former federal prosecutor, said. “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.”
Although Issa dismissed Lerner, at the end of the hearing he announced that the committee would recess rather than adjourn while he determines whether Lerner should be recalled before the panel.
“Ms. Lerner may have waived her Fifth Amendment rights by addressing core issues in her opening statement and the authentication afterwards,” Issa, R-Calif., said as he brought the hearing to a close. “Although I excused Ms. Lerner subject to a recall, I am looking into the possibility of recalling her and insisting that she answer questions in light of a waiver.”
A Republican committee aide said the application of the Fifth Amendment has nothing to do with House or committee rules, but rather is a constitutional question. The aide said courts have interpreted that the Fifth must be asserted in the absolute, not partially.
“Congress is respective when witnesses assert the Fifth, but if it’s not asserted properly, you’re not refusing to testify based on constitutional protection,” the aide explained. “Because you don’t want to answer certain questions, there’s a potential contempt of Congress.”
Sources also believe Lerner’s decision to read a statement into the record while invoking the Fifth may have been unprecedented for congressional testimony.
Rep. Elijah Cummings, the top Democrat on the committee, said he does not personally believe Lerner waived her rights with her actions on Wednesday, but he said the committee should look into the issue.
“This is not a courtroom,” Cummings, D-Md., said. “In a courtroom that might have been the case. It’s a legal question.”
Cummings added that Lerner was acting on advice of counsel, and he doubted her legal team would have permitted her to deliver a statement if it would jeopardize her right to invoke the Fifth.
One constitutional expert noted that generally people who claim the Fifth in hearings give no statement and it would be “unusual” to give a statement and still claim the Fifth.
“Most witnesses claiming the Fifth will not tempt fate by answering any questions,” said Michael Gerhardt, a University of North Carolina constitutional law professor who specializes in the relationship between Congress and the executive branch. “I suppose the witness might argue he or she is claiming the Fifth for limited purposes but then needs to have someone spell out the relevant scope.”
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