Alan Dershowitz: IRS Chief Lerner 'Can Be Held in Contempt'

Wednesday, 22 May 2013 06:40 PM

By Bill Hoffmann

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Lois Lerner, the Internal Revenue Service’s embattled director of Exempt Organizations, could be held in contempt of court and jailed for refusing to testify before Congress, civil-rights lawyer Alan Dershowitz says.

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"She's in trouble. She can be held in contempt," Dershowitz told "the Steve Malzberg Show" on Newsmax TV.

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"Congress . . . can actually hold you in contempt and put you in the Congressional jail."

Lerner, grilled Wednesday on the IRS' targeting of conservative organizations, invoked her Fifth Amendment right against self-incrimination — but not before insisting "I have done nothing wrong."

Her brief statement of innocence has opened a legal Pandora's Box, according to Dershowitz.

"You can't simply make statements about a subject and then plead the Fifth in response to questions about the very same subject," the renowned Harvard Law professor said.

"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."

He said the fact that Lerner went ahead with her proclamation of could be considered malpractice on the part of her attorney — although it's possible she overruled the advice she received.

"It should never have been allowed. She should have been told by her attorney that the law is clear, that once you open up an area of inquiry for interrogation, you have to respond," he said.

"Now she may have made a political decision that it's worth it to take the risk . . . That's just not the way the law works. It may be the way politics works . . . but she can't invoke the Fifth."

He said the issue goes back to the "bad old days" of McCarthyism, during hearings in which suspected Communists were grilled by the House on American Activities Committee and Senate committees.

"[They] tried to trap people by saying, look, you're a Fifth Amendment communist, you won't answer any questions," he said.

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"And the people would say we'd love to answer your questions but we can't because if we do, we waive [our rights] and then you'll ask us who our friends are and who else was a member of the Communist Party . . .

"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."

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