In Contempt


From Andrew C. McCarthy:

You can always rely on the administration of Barack Obama, a former constitutional-law lecturer (or as his résumé-inflating fans put it, “professor”), to do the sleazy thing when it comes to the Constitution the president is sworn to defend. Thus, the performance on Wednesday of Lois Lerner, chief of the Obama IRS’s Conservative Harassment Division, before the House oversight committee.

There’s an old scam criminal defendants occasionally pull. They give a bit of exculpatory direct testimony – just enough to gaze plaintively at the jurors and swear, cross-their-hearts, that they are pure as the driven snow. Then, just as the moment of submitting to cross-examination approaches, they announce that, even though they’re really, truly innocent, they just can’t answer the mean prosecutor’s questions – on advice of counsel, of course, in reliance on the Fifth Amendment.

Everyone familiar with this area of the law knows that this is contemptuous conduct. To testify, by definition, is to agree to submit to cross-examination. Once you begin to answer questions – i.e., to testify – you waive your right not to testify – i.e., not to answer questions.

In a trial, the judge does not put up with such shenanigans, which are, after all, a fraud on the process. The court rules that, by giving exculpatory testimony on direct examination, the defendant has waived his Fifth Amendment privilege; therefore, the defendant is directed to answer the prosecutor’s questions on cross-examination. If he persists in refusing to answer, he is held in contempt. Thereafter, each refusal to answer is a separate contempt, for which the defendant can (a) be jailed by the judge (until he relents and agrees to be cross-examined), and (b) later prosecuted by the government, because contempt is an indictable crime, too.

The point of the scam is obvious. The defendant wants to get his proclamation of innocence out in the public domain – maybe it will influence a juror or two. Lerner is not on trial (not yet, anyway) but her tactic had the desired effect: all day long the networks have been running loops of her assertions of innocence.

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