Which is fine. She has that right. The irrational side of one's brain might get a little interested as to why, but the rational side would think in our lawyered up culture that this move might mean nothing.
Then, for reasons unknown at this point, she decided read a prepared statement (h/t: Volokh) before invoking the 5th:
"On May 14th, the Treasury inspector general released a report finding that the Exempt Organizations field office in Cincinnati, Ohio used inappropriate criteria to identify for further review applications from organizations that planned to engage in political activity, which may mean that they did not qualify for tax exemption.
On that same day, the Department of Justice launched an investigation into the matters described in the inspector general’s report. In addition, members of this committee have accused me of providing false information when I responded to questions about the IRS processing of applications for tax exemption.
I have not done anything wrong. I have not broken any laws. I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee.
And while I would very much like to answer the committee’s questions today, I’ve been advised by my counsel to assert my Constitutional right not to testify or answer questions related to the subject matter of this hearing.
After very careful consideration, I’ve decided to follow my counsel’s advice, and not testify or answer any of the questions today.
Because I’m asserting my right not to testify, I know that some people will assume that I’ve done something wrong. I have not."
I am not a crimlaw specialist, or even a lawyer for that matter. But her statement seemed wholly unnecessary to me. In my dealings with IP law I've learned to keep my statements concise. Less is more. "Methinks the lady doth protest too much", and all that.
Some other thoughts:
- Her representation should have insisted to the point of leaving that she should not make a statement. Not just for the above paragraph, but that she was hiding behind the 5th but potentially asserting facts. This is a no-no. Think about Lerner's move this way-you get a witness that only gets to testify for the defense. So what I am saying is her lawyer sucks.
- Her statement shows incredible ego. My insane theory is that she had a much longer speech to make, and her lawyer compromised.
- This woman is to head the implementation of the ACA and screws up something as simple as keeping her fool mouth shut.
Head over to Volokh for the more in depth "facts vs. legal assertions" debate. One can make a case either way.
My opinion? I agree with the Dersh. Lerner opened up with her version of the facts of the case. Then her little shpeil went overboard mixing legal and factual conclusions. She waived her 5th Amendment right, and needs to be hauled back in.
Of course, she could take the Hillary Clinton route and head to wine tasting in Australia. Perfect troll move.