Lois Lerner, the IRS official in charge of tax-exempt groups, took her too-clever-by-half act to Congress yesterday and may have waived her right to claim her Fifth Amendment privilege in the process. Appearing before the House Oversight and Government Reform Committee, she couldn’t resist citing a little history, bragging on her public service, instructing the committee as to the purpose of the Fifth Amendment, and proclaiming her innocence of everything the committee might be interested in — all before asserting her Fifth Amendment privilege.

Chairman Darrell Issa (R., Calif.) was a bit taken aback. He had never seen anybody try that before. Neither had I. Witnesses and lawyers know, or should know, that you can’t selectively invoke the Fifth Amendment — that is, partially testify. That is why, if a decision is made to take the Fifth, a lawyer will instruct his client to invoke it after almost every question, after identity is established, out of an abundance of caution. You don’t want your client to unintentionally waive the privilege.

The reason for the “selectivity” rule is to prevent the distortion of the record or the perversion of justice. What if a witness testified as to his side of the story and then took the Fifth on cross-examination? No fair. So now Issa is planning to call her back and take the position that she waived the privilege and must testify or, presumably, face contempt charges. So did she waive the privilege? As you might expect, the matter is not quite as simple as it appears.
As best I can remember, there is no case on point involving a congressional hearing. Although court cases, both criminal and civil, are applicable, though somewhat different standards are applied, the general rule as to waiver is as I’ve stated. Even in the court decisions, however, there is probably no case on point. As I stated, people simply don’t usually get themselves in this position. Also, the cases are very fact-specific.

No two cases are alike. However, in light of the purpose of the waiver rule, I think Ms. Lerner has a real problem. And it’s not just because of the statement she made yesterday. Apparently, Ms. Lerner made statements to the committee or committee staff before yesterday, either in person, answering written questions, or both, regarding the committee’s IRS-targeting investigation. The courts have held that a person can be deemed to have waived the privilege in prior testimony if the testimony was part of the “same proceeding.” Seems pretty clear that it was: For example, one court has held that grand-jury testimony was part of the same proceeding as the subsequent trial. So if, in prior testimony, she revealed an incriminating fact, the privilege cannot be invoked to avoid discussion of the details.

Then add the fact that Issa got her to verify at least some of her prior written statements yesterday, and supplement that with her statement as to her innocence, etc., and one must conclude that she may pay dearly for her little moment of indulgence. It was about as clever as planting a question in an out-of-the-way conference on a Friday afternoon in order to have the scandal dribble out mainly unnoticed. It may well get the same results.

- Fred Thompson

IRS’s Lois Lerner signed letters sent to targeted right-wing groups. Bad news, Lois – the 5th Amendment doesn’t apply to signatures. #tcot

— Fred Thompson (@fredthompson) June 3, 2013

Here’s the report:

Lois Lerner, the IRS Director of Exempt Organizations, signed letters that were sent to targeted groups asking them to turn over an extensive amount of information to the IRS. Earlier this week Lerner refused to testify before the House Oversight and Government Reform Committee, but not before proclaiming that she had “done nothing wrong” or “broken any laws.”

Lerner has been placed on administrative leave, reportedly after she refused to resign from the agency.

American Center for Law and Justice chief counsel Jay Sekulow, who represents more that a dozen Tea Party groups, released a sample of the IRS letters sent to Tea Party type groups.

“It appears Lerner did nothing to stop the abusive conduct. And our evidence suggests she was actively participating in the improper targeting in March 2012,” he said in a statement.

Click here to read more.

Last year, 7 Dems sent letter to IRS: investigate conservative political groups. This from the crowd that abhors profiling at airports #tcot

— Fred Thompson (@fredthompson) May 22, 2013

Here’s the story:

The same Democratic chairman of the Senate Finance Committee who this week is calling for hearings into IRS activities, specifically called on the IRS to engage in that very conduct back in 2010. And he wasn’t the only one. Just last year, a group of seven Senate Democrats sent another letter to the IRS urging them to similarly investigate these outside political organizations.

As the New York Times also reported just one week before they sent this letter:

The Internal Revenue Service is caught in an election-year struggle between Democratic lawmakers pressing for a crackdown on nonprofit political groups and conservative organizations accusing the tax agency of conducting a politically charged witch hunt.

Voters in New Hampshire may be interested to learn that Jeanne Shaheen was among the signatories of that letter urging action by the IRS.

So lost amid the hubbub surrounding the news that the IRS engaged in McCarthyite tactics to target specific political groups, and their subsequent apology for those tactics, has been the fact that the lobbying campaign from Senate Democrats actually worked.

From Max Baucus to Chuck Schumer to Jeanne Shaheen, key Senate Democrats publicly pressured the IRS to target groups that held differing political views and who, in their view, had the temerity to engage in the political process.

Read more here.

Axelrod:Obama ignorant of scandals “because the government is so vast” Really? This administration seems more half-vast to me. #tcot

— Fred Thompson (@fredthompson) May 21, 2013

Watch the video below:

Here’s the report:

The government is simply too big for President Obama to keep track of all the wrongdoing taking place on his watch, his former senior adviser, David Axelrod, told MSNBC. “Part of being president is there’s so much beneath you that you can’t know because the government is so vast,” he explained.

Axelrod also defended the administration against criticism of the Department of Justice’s decision to seize reporters’ phone records, noting that Joe Scarborough had criticized the administration for the number of national-security leaks that had occurred. Scarborough was having none of it: ”I’ve heard the president’s defenders trying to say this, and I congratulate you guys for going off into a room, calling each other, and coming up with this bogus argument, but never did I suggest that 100 AP reporters have all of their phone records seized, their cell-phone records seized, their home phone numbers seized.”

Read more here.

Obama: Republicans are “still telling tall tales” about Obamacare. Not as tall as that 20,000-page stack of Obamacare regulations. #tcot

— Fred Thompson (@fredthompson) May 20, 2013

Here’s the story:

President Obama urged Americans not to read “some blog” or rely on Republicans to describe Obamacare, because they are telling “tall tales” about the law’s provisions.

“Don’t just read a blog or some commentary from some pundit that has a political agenda, make sure you know what the actual facts are,” Obama said Friday, moments after saying that Republicans are “still telling tall tales about [Obamacare's] impact.”

For instance, Obama issued this fact check: “Whenever insurance premiums go up, you’re being told it’s because of Obamacare, even though there’s no evidence that it’s the case,” he said, blaming insurance companies and employers instead.

Those Republicans apparently fooled one of their top political opponents, Sen. Chuck Schumer, D-N.Y., who was asked if Obamacare is driving up insurance premiums just a couple weeks ago.

Click here for more.

Obama: we should expect some “hiccups” with implementing Obamacare. Too bad there won’t be any doctors left to treat them. #tcot

— Fred Thompson (@fredthompson) May 20, 2013

Watch this video below:

Undoubtably there will be some mistakes and hiccups as the thing gets started up, but we’re already learning from them.

Kiefer Sutherland’s anti-terrorist TV series “24″ will return to Fox this season. In the opening episode, Jack Bauer gets audited. #tcot

— Fred Thompson (@fredthompson) May 17, 2013

Read the report below:

Jack Bauer will be back to smash more terrorist cells, but will TV’s toughest crime fighter still pull out all the stops to save innocent lives?

Fox is expected to announce a new, limited series version of the popular terrorism drama 24 today, May 13, with showrunner Howard Gordon and star Kiefer Sutherland returning to the franchise.

That’s great news for fans of the show, which featured Sutherland’s character doing anything and everything necessary to prevent terrorist attacks on the home front.

Torture? Sure. Harsh interrogations? Of course. The series featured that worst case, ticking time bomb scenario that turned some doves into hawks on the matter of televised terrorism.

That didn’t sit well with the Left, although the show’s popularity overshadowed most of the outrage. The series came of age before the Twitter revolution, and by the time 24 wrapped its final season in May of 2010 the social networking site hadn’t yet assumed its full clout. Plus, the series has lost some of its pop culture might in its final episodes.

We’re living in an age when the current administration dubs terrorism “workplace violence” and overseas attacks are scrubbed of their terrorist roots.

Can we expect a kinder, gentler Jack Bauer? Or will Fox executives realize the formula which made 24 such an unrelenting thriller should be left alone?

Click here for more.

Pelosi: blame sequester for keeping her from visiting troops on Mother’s Day. Ironically, troops credit sequester for same reason. #tcot

— Fred Thompson (@fredthompson) May 13, 2013

Watch Pelosi below:

“Every year for the past few years, on Mother’s Day, I’ve gone–I’ve taken a delegation–into Afghanistan or Iraq, we’re alternating now, now Afghanistan–for Mother’s Day to say thank you to our moms and, by the way, our grandmothers, who are serving there. Some young grandmothers. But, nonetheless, grandmothers. To also thank all of our troops for what they do to protect America’s families. I won’t be going this particular weekend because we don’t have–you know, under sequestration, we don’t have codels.”

US military admits losing track of Syria’s chemical weapons. They’re probably somewhere near the F-16s we sold to Egypt. #tcot

— Fred Thompson (@fredthompson) May 9, 2013

Here’s the story:

As the White House mulls whether Syria has crossed President Obama’s red line and used chemical weapons, the U.S. military and intelligence community are quietly acknowledging that the United States does not know where many of those weapons are located.

The judgment comes from top U.S. military commanders and is supported by recent intelligence community assessments, according to three U.S. officials who work closely on Syrian intelligence matters. At the heart of the concern is that the Syrian military has transferred more and more of its stock of sarin and mustard gas from storage sites to trucks where they are being moved around the country. While U.S. intelligence agencies first saw reports that Syria was moving the weapons last year, the process has accelerated since December, according to these officials. Also worrisome, said two of the officials, is intelligence from late last year that says the Syrian Scientific Research Center—an entity responsible for Syria’s chemical-weapons stockpile—has begun to train irregular militias loyal to Syrian President Bashar al-Assad in how to use the chemical munitions.

The assessment that Syria is moving large amounts of its chemical weapons around the country on trucks means that if Obama wanted to send in U.S. soldiers to secure Syria’s stockpiles, his top generals and intelligence analysts doubt such a mission would have much success, according to the three officials. “We’ve lost track of lots of this stuff,” one U.S. official told The Daily Beast. “We just don’t know where a lot of it is.”

The large-scale movement of weapons, if it is in fact occurring, would violate one of Obama’s earliest declared red lines concerning Syria. Last August he said, “We have been very clear to the Assad regime, but also to other players on the ground, that a red line for us is, we start seeing a whole bunch of weapons moving around or being utilized.”

Continue reading here.

Dem Rep Elijah Cummings on Benghazi: “death is a part of life”. So are break-ins, but we’ve been dealing with Watergate for 40 years. #tcot

— Fred Thompson (@fredthompson) May 9, 2013

Here’s a story:

During the House Oversight and Government Reform Committee hearings on Benghazi Wednesday morning, Rep. Elijah Cummings (D-Md.), the committee’s ranking member, said some not-so-comforting words to those testifying before the committee about the terrorist attacks that killed the U.S. Ambassador to Libya, Christopher Stevens, and three other Americans last September 11.

“As I listen to your testimony I could not help but think about something that I said very recently – about two years ago now – in an eulogy for a relative,” Cummings said in response to the testimony provided by Gregory Hicks, the deputy chief of mission at the U.S. Embassy in Libya at the time of the attack.

“I said that death is a part of life, but so often we have to find the way to make life a part of death,” he continued. “I guess the reason that I’m saying that, I want to go back to something Mr. Nordstrom said, when he was…umm…he said that he wanted to make sure that….and all of you have said it pretty much…you want to make sure we learn from this, so that…umm…your comrades and our four members of the diplomatic core who sadly passed away…so that this never happens again. And I appreciate it, I know this was difficult, I know this is…we all feel your pain.”

Watch Cummings’ remarks here:

Click here for more.