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Waving and Waiving the Fifth Amendment

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Matthew Huisman has this article in the NLJ (free reg. required):

When Lois Lerner of the Internal Revenue Service invoked her Fifth Amendment right against self-incrimination before a House committee on Wednesday, she did so after making a brief statement.

Those remarks have triggered a debate over whether Lerner waived her Fifth Amendment rights. While case law on the subject is limited and fuzzy, most practitioners agree that Lerner risks being held in contempt.
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George Washington University Law School professor Orin Kerr, in a post on The Volokh Conspiracy blog, pointed to the 1999 Supreme Court ruling in Mitchell v. U.S. that a witness "may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details."

Another Supreme Court precedent on the subject of selective silence is forthcoming.  Salinas v. Texas was argued in April and will probably be decided in June.  CJLF's brief is here.  My podcast for the FedSoc is here.  I don't know if Salinas will shed any additional light on the Lerner situation, but it might.

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