Darrell Issa: Lois Lerner lost her rights

House Oversight and Government Reform Committee Chairman Darrell Issa said embattled IRS official Lois Lerner waived her Fifth Amendment rights and will be hauled back to appear before his panel again.

The California Republican said Lerner’s Fifth Amendment right to avoid self-incrimination was voided when she gave an opening statement this morning denying any wrongdoing and professing pride in her government service.

When I asked her her questions from the very beginning, I did so so she could assert her rights prior to any statement,” Issa told POLITICO. “She chose not to do so — so she waived.”

(PHOTOS: Who’s taken the Fifth?)

Lerner triggered the IRS scandal on May 10 when she acknowledged that the agency wrongly targeted conservative groups applying for a tax exemption. Her lawyer told the House committee earlier this week that she would exercise her Fifth Amendment.

She appeared before Issa’s committee this morning under the order of a subpoena and surprised many by reading a strong statement to the panel.

“I have not done anything wrong,” she said. “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 committee.”

(Also on POLITICO: Lois Lerner pleads the Fifth)

Issa dismissed her from the committee room once it became clear she wouldn’t answer questions. As the hearing wound down this afternoon, Issa kept the panel in recess instead of adjourning. The move allows him to recall Lerner without issuing a new subpoena.

Legal experts are questioning whether Lerner’s Fifth Amendment protections dissolved once she began talking on Wednesday, as Issa argues.

“I don’t think a brief introductory preface to her formal invocation of the privilege is a waiver,” said Stan Brand, who was the general counsel for the House of Representatives from 1976 to 1983 and works on ethics issues.

(Full coverage of IRS controversy)

He said the bigger problem for Lerner may be that she has made herself available to Congress in the past.

“The more serious question is whether any of her earlier congressional appearances before other committees constituted a waiver,” Brand said. “That in turn may depend on whether any of those appearances were ‘compelled’ — that is, pursuant to a subpoena.”

He said the committee may ultimately pursue a contempt charge if Lerner continues to refuse to talk.

“Bottom line,” Brand said, “I think we will hear no more from Ms. Lerner” unless she is provided immunity.

Maryland Rep. Elijah Cummings, the top Democrat on the Oversight committee, said he didn’t think Lerner waived her fifth amendment protections.

“I don’t think her counsel would have allowed her to give a statement knowing that the very purpose of him being here — for her to assert her fifth amendment rights — would be damaged if she made a statement,” he told reporters.

Lerner’s decision to speak at all immediately triggered a dust-up among lawmakers who were confused about whether she gave up her Fifth Amendment protections when she made the opening statement.

Rep. Trey Gowdy (R-S.C.), a former federal prosecutor, said Lerner lost her rights the minute she started proclaiming her innocence, and that lawmakers therefore were entitled to question her. Cummings — himself a former lawyer — said congressional hearing rules were not like those of a courtroom.

During the incident, Issa did not flat-out say whether or not Lerner had indeed waived her rights but instead tried to coax her into staying by offering to narrow the scope of questions.

By the afternoon, Issa was taking a harder stand.

“The precedents are clear that this is not something you can turn on and turn off,” he told POLITICO. “She made testimony after she was sworn in, asserted her innocence in a number of areas, even answered questions asserting that a document was true … So she gave partial testimony and then tried to revoke that.”

He said he was not expecting that.

“I understand from her counsel that there was a plan to assert her Fifth Amendment rights,” he continued. “She went ahead and made a statement, so counsel let her effectively under the precedent, waive — so we now have someone who no longer has that ability.”

Kelsey Snell contributed to this report.

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