Category Archives: Fifth Amendment

The Obama administration informed Capitol Hill this week that it wont prosecute former IRS executive Lois G. Lerner for contempt of Congress, concluding that she did not waive her Fifth Amendment rights to avoid answering questions when she was called to testify nearly two years ago.

Ms. Lerner, the figure at the center of the IRS tea party targeting scandal, is still facing investigation over the intrusive scrutiny of conservative groups, but the decision by U.S. Attorney Ronald Machen does away with at least some of her legal jeopardy.

Still, Republicans were furious with the decision by Mr. Machen, who issued it on Tuesday, his final day in office before returning to the private sector, saying it raises major questions over the separation of powers and heightens tensions between President Obama and the GOP-led House that voted to hold Ms. Lerner in contempt.

For her part Ms. Lerner, through her lawyer, sounded a triumphant note.

We are gratified but not surprised by todays news, said William W. Taylor III, who has handled Ms. Lerners defense. Anyone who takes a serious and impartial look at this issue would conclude that Ms. Lerner did not waive her Fifth Amendment rights. It is unfortunate that the majority party in the House put politics before a citizens constitutional rights.

The House Oversight Committee had tried to question Ms. Lerner about the tea party targeting soon after it was revealed in May 2013. Ms. Lerner, a longtime federal bureaucrat, attended the hearing, delivered an opening statement professing her innocence, and then declined to answer any of the panel members questions, citing her Fifth Amendment right against self-incrimination.

Republicans on the committee said her opening statement amounted to a waiver of those rights, saying she shouldnt be allowed to have her say and then refuse to be cross-examined by committee members.

But Mr. Machen said making a general statement of innocence did not amount to testimony about the actual facts, so Ms. Lerner was in the clear.

The Constitution would provide Ms. Lerner with an absolute defense if she were prosecuted for contempt, Mr. Machen said in a statement.

Perhaps just as important as his decision not to prosecute was Mr. Machens defense of his ability to make such a decision in the first place.

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IRS's Lois Lerner won't be charged with contempt

File: May 22, 2013: Ex-IRS official Lois Lerner is sworn in on Capitol Hill, in Washington, D.C.(AP)

The Justice Department has declined to pursue contempt of Congress charges against Lois Lerner for refusing to testify about her role at the IRS in the targeting of conservative groups.

The department announced the decision in a letter Tuesday to House Speaker John Boehner, whose Republican-controlled chamber made the request to prosecute, after holding Lerner in contempt for refusing to testify at committee hearings.

"Once again, the Obama administration has tried to sweep IRS targeting of taxpayers for their political beliefs under the rug, Boehner spokesman Michael Steel told FoxNews.com.

Lerner asserted her Fifth Amendment privilege, which allows people to not testify against themselves, during a May 2013 hearing of the House Committee on Oversight and Government Reform and then again at a March 2014 hearing.

However, House Republicans argued Lerner waived the privilege with an opening statement she made before the committee in the May 2013 appearance. All the chambers Republican members and six Democrats officially voted in May 2014 to hold Lerner in contempt.

Ron Machen Jr., the U.S. attorney for the District of Columbia, said in the seven-page letter that federal prosecutors concluded Lerner did not waive her privilege because she made only general claims of innocence during the opening statement.

Thus, the Fifth Amendment to the Constitution would provide Ms. Lerner with an absolute defense should be prosecuted for her refusal to testify, wrote Machen, who was appointed to the U.S. attorney post by President Obama and left for private practice Wednesday, one day after sending the letter.

He also said he will not refer the case to a grand jury or take any other action to prosecute.

Lerner ran the IRSs exempt organizations unit when Tea Party and other nonprofit groups with conservative names applying for tax-exempt status were targeted for additional auditing from April 2010 to April 2012.

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Feds won't purse contempt charges against Lerner for not testifying before House

Ex-Internal Revenue Service official Lois Lerner, a central figure in the IRStargeting scandal, will not face criminal contempt charges for refusing to testify about the matter before a House oversight committee last year.

Ronald Machen, the U.S. attorney for the District of Columbia, said in a letter this week to House Speaker John Boehner (R-Ohio) that he would not bring a criminal case against Lerner, who headed the IRSs exempt-organizations division when the agency inappropriately selected nonprofit advocacy groups for extra scrutiny based on their names and policy positions.

The former officialacknowledged the agencys mistakes at a legal conference in May 2013, days beforethe release of a scathing inspector generals report about the issue.

[Related: Investigators probing for criminal activity with Lois Lerners missing e-mails]

The House approved a contempt resolutionagainst Lernerin May 2014, after she invoked her Fifth Amendment right not to testify during a hearing with the House Oversight and Government Reform Committee. The panels then-chairman, Rep. Darrell Issa (R-Calif.), insisted that shewaived the right by asserting her innocence during an opening statement.

Machen disagreed with Issa, saying Lerner made only general claimsof innocence and that the Constitution would provide her withan absolute defense should she be prosecuted.

Lerners attorney, William Taylor III, applauded the decision in a statement Wednesday. Anyone who takes a serious and impartial look at this issue would conclude that Ms. Lerner did not waive her Fifth Amendment rights, he said. It is unfortunate that the majority party in the House put politics before a citizens constitutional rights. Ms. Lerner is pleased to have this matter resolved and looks forward to moving on with her life.

Boehners office criticized the decision and called on the White House to appoint a special counsel to review the IRSs actions.

Once again, the Obama administration has tried to sweep IRS targeting of taxpayers for their political beliefs under the rug, Boehner spokesman Michael Steel said in a statement on Wednesday. But unaccountable federal bureaucrats using their power to attack the First Amendment strikes at the heart of our democracy, and the American people deserve the truth.

Aside from the contempt issue, the Justice Department has beeninvestigating the IRS for possible criminal activities related to the targeting matter since May 2013, when Attorney General Eric Holder ordered the probe. On Wednesday, the agency said it is working to complete the review as expeditiously as possible.

Link:
Federal Eye: Justice Department will not seek contempt charges against Lois Lerner

SAM HANANEL, Associated Press 5:33 p.m. EDT April 1, 2015

Lois Lerner, ex-director of the Tax Exempt and Government Entities Division at the IRS, declines to answer questions from Rep. Darrell Issa.(Photo: AFP/Getty Images)

WASHINGTON (AP) The Justice Department won't seek criminal contempt charges against Lois Lerner, the former IRS official at the center of a controversy over how the agency treated conservative political groups.

Ronald Machen, the outgoing U.S. Attorney for the District of Columbia, announced the decision in a March 31 letter to House Speaker John Boehner that was made public on Wednesday.

The GOP-controlled House had referred the case to federal prosecutors after lawmakers voted last year to hold Lerner in contempt of Congress for her refusal to testify before a pair of committee hearings.

Lerner directed the IRS division that processes applications for tax-exempt status. She set off a political firestorm in 2013 when she disclosed that agents had improperly singled out applications from tea party and other conservative groups for extra, sometimes burdensome scrutiny.

An inspector general's report found no evidence of a political conspiracy, instead blaming poor management at the agency. But many Republicans in Congress remain skeptical.

Lerner invoked her Fifth Amendment right not to answer questions at a hearing before the House Oversight Committee. But House Republicans claim she waived her constitutional right by delivering an opening statement in which she declared her innocence.

In his letter, Machen said a team of "experienced career prosecutors" determined that Lerner did not waive her Fifth Amendment rights by making "general claims of innocence."

Machen, whose last day in office was Wednesday, said prosecutors concluded that it would not be appropriate to send contempt charges to a grand jury because the Constitution protects her.

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Justice Dept.: No contempt charges for Lois Lerner

The Department of Justice will not charge former IRS official Lois Lerner for contempt, despite an attempt by members of the House of Representatives to charge her for refusing to testify during a hearing about whether the department unfairly targeted conservative fundraising groups.

Although the House approved a criminal contempt resolution against Lerner last year for invoking her Fifth Amendment right against self-incrimination during a Congressional hearing a right that then-Oversight Committee chairman Darrell Issa (R-CA) said that she had waived prior to the hearing Politico reports that Ronald Machen, the former former U.S. Attorney for the District of Columbia, will not file said charges against Lerner.

According to Machen, Lerner, who said that she was innocent in a hearing ten months prior to her citing the Fifth Amendment, was still well within her rights to plead the fifth:

Machen said the Oversight Committee followed proper procedures in telling Lerner that it had rejected her claim of privilege and gave her an adequate opportunity to answer the Committees questions. IRS watchdog probing potential criminal activity in Lerner email mess

However, Machen said Justice Department lawyers determined that Lerner did not waive her Fifth Amendment right by making an opening statement on May 22, 2013, because she made only a general claims of innocence.

Machen added: Given that assessment, we have further concluded that it is not appropriate for a United States Attorney to present the matter to the grand jury for action where, as here, the Constitution prevents the witness from being prosecuted for contempt.

Lerners lawyer welcomed the results, saying that Anyone who takes a serious and impartial look at this issue would conclude that Ms. Lerner did not waive her Fifth Amendment rights, and that his client was pleased to have this matter resolved.

[Politico] [Image via screenshot/CSPAN]

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DOJ Wont Charge Lois Lerner for Contempt of Congress

AP Photo

She is still under investigation for a separate tea party targeting matter.

By John Bresnahan and Rachael Bade

4/1/15 2:16 PM EDT

Updated 4/1/15 5:09 PM EDT

The Justice Department will not seek criminal contempt charges against former IRS official Lois Lerner, the central figure in a scandal that erupted over whether the tax agency improperly targeted conservative political groups.

Ronald Machen, the former U.S. attorney for the District of Columbia, told House Speaker John Boehner (R-Ohio) in a seven-page letter this week that he would not bring a criminal case to a grand jury over Lerners refusal to testify before the House Oversight and Government Reform Committee in March 2014. The House approved a criminal contempt resolution against Lerner in May 2014, and Machens office has been reviewing the issue since then.

Story Continued Below

Lerner and other IRS officials, however, are still under investigation by the FBI for the tea party targeting matter which is a separate probe entirely.

Lerner cited her Fifth Amendment right not to incriminate herself during congressional testimony on March 5, 2014, although then-Oversight Chairman Rep. Darrell Issa (R-Calif.) said she had waived that right by giving an opening statement at a hearing 10 months earlier when she asserted her innocence. Issa wanted her charged by the Justice Department with criminal contempt of Congress for failing to answer questions about her role in the scandal.

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DOJ: No contempt charges for former IRS official Lerner

File: May 22, 2013: Ex-IRS official Lois Lerner is sworn in on Capitol Hill, in Washington, D.C.(AP)

The Justice Department has declined to pursue contempt of Congress charges against Lois Lerner for refusing to testify about her role at the IRS in the targeting of conservative groups.

The department announced the decision in a letter Tuesday to House Speaker John Boehner, whose Republican-controlled chamber made the request to prosecute, after holding Lerner in contempt for refusing to testify at committee hearings.

"Once again, the Obama administration has tried to sweep IRS targeting of taxpayers for their political beliefs under the rug, Boehner spokesman Michael Steel told FoxNews.com.

Lerner asserted her Fifth Amendment privilege, which allows people to not testify against themselves, during a May 2013 hearing of the House Committee on Oversight and Government Reform and then again at a March 2014 hearing.

However, House Republicans argued Lerner waived the privilege with an opening statement she made before the committee in the May 2013 appearance. All the chambers Republican members and six Democrats officially voted in May 2014 to hold Lerner in contempt.

Ron Machen Jr., the U.S. attorney for the District of Columbia, said in the seven-page letter that federal prosecutors concluded Lerner did not waive her privilege because she made only general claims of innocence during the opening statement.

Thus, the Fifth Amendment to the Constitution would provide Ms. Lerner with an absolute defense should be prosecuted for her refusal to testify, wrote Machen, who was appointed to the U.S. attorney post by President Obama and left for private practice Wednesday, one day after sending the letter.

He also said he will not refer the case to a grand jury or take any other action to prosecute.

Lerner ran the IRSs exempt organizations unit when Tea Party and other nonprofit groups with conservative names applying for tax-exempt status were targeted for additional auditing from April 2010 to April 2012.

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HOME FREE Justice Dept. won't pursue charges against Lerner

Border Patrol - Illegal General Search in El Paso, TX
Border Patrol agents illegally stop and question US Citizens at a border checkpoint in El Paso, TX. The card says: "I do not consent to this stop. -I Invoke and refuse to waive my Fifth Amendment...

By: armedwatchman

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Border Patrol - Illegal General Search in El Paso, TX - Video

A recent case has people wondering if, how, and when police officers can use their property, including their house, to stage law enforcement operations.

A Henderson, NV family claimed officers violated the Third Amendment ("[n]o Soldier shall, in time of peace be quartered in any house, without the consent of the Owner") by occupying their homes to investigate a domestic dispute at a neighbor's house. A federal court found that, while officers may have committed some other constitutional violations, the amendment didn't apply because the officers were not soldiers.

So is there any limit to when the police can use your property as a base of operations?

No Third Amendment Protection

The District Court in Nevada dismissed the families' Third Amendment claims because it did not consider municipal police officers as soldiers:

I hold that a municipal police officer is not a soldier for purposes of the Third Amendment. This squares with the purpose of the Third Amendment because this was not a military intrusion into a private home, and thus the intrusion is more effectively protected by the Fourth Amendment. Because I hold that municipal officers are not soldiers for the purposes of this question, I need not reach the question of whether the occupation at issue in this case constitutes quartering, though I suspect it would not.

Therefore, it seems likely that the police would have significant leeway in setting up a base of operations on a citizen's private property. It's generally agreed upon that officers may set up speed traps on private property, including driveways, to monitor public highways.

Fourth or Fifth Amendment Protection?

The Fourth Amendment prohibits "unreasonable searches and seizures," a may cover officers occupying private property. Weather officers' presence on private property is unreasonable would likely come down to the property owner's "reasonable expectation of privacy." This determination that could depend on whether officers are inside an owner's home, which carries a higher privacy expectation, or outside where the expectation of privacy is lessened.

The Fifth Amendment's Eminent Domain Clause bars the government from taking personal property for public use without "just compensation." Although courts have expanded the definition of a taking to beyond the forced sale of a home, it remains to be seen whether police officers temporarily occupying private property would apply under the amendment.

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Can the Police Occupy My Property?

A good bill has slipped through the gridlock of partisan dysfunction in the Roundhouse. Perhaps we ought to have it bronzed.

Now the Forfeiture Act needs public support. As of this writing, Governor Martinez has been non-committal about signing the bill. Here is why it deserves to become law.

The Fifth Amendment of the Constitution provides, in seemingly straightforward language, that "no person shall be ... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Yet it has been a common practice for law enforcement to seize property even without a criminal conviction. The practice became a prominent weapon during the Reagan era and the "war on drugs," a way to take money away from drug lords and use it to fund law enforcement. New York City, under the authoritarian mayor Rudy Giuliani, later introduced its use against drunk drivers. Cities claim forfeiture as a deterrent, but revenue is clearly a major attraction.

Revenue certainly seemed uppermost in the mind of Las Cruces's former city attorney, Harry "Pete" Connelly, when he was videotaped at a law enforcement conference last September describing a well-written forfeiture complaint as a "masterpiece of deception" and describing police officers' excitement when pulling over a DWI suspect in a luxury car. Connelly tacitly acknowledged the class nature of forfeiture by admitting most of the cars seized under civil forfeiture were older cars that weren't as valuable.

The excesses of forfeiture are frightening. In Connelly's infamous lecture, he described a case in Philadelphia where a couple had their home seized because their son was involved in a $40 drug transaction on their porch. The city grabbed $4 million from 8,000 forfeiture cases in the year 2010 alone.

Criminal and civil forfeitures are different things. Criminal forfeiture follows a criminal conviction, whereas civil forfeiture, a concept created by statute, does not require a conviction or even necessarily a criminal charge against the property owner. It circumvents the Constitution in part by supposing that the property itself has broken the law, and may be seized regardless of whether the human being owning the property is charged with anything.

It makes sense that reforming forfeiture laws in New Mexico would pass our divided Legislature. It is a rare opportunity to correct injustices that matter to both the right and the left. On the right, the main concern has to do with property rights, and the power of government to take your stuff arbitrarily. Forbes contributor George Leef went as far as to argue that the plunder of forfeiture proves that "the state is our enemy." Take that, authoritarian wing of the Republican Party. On the left, forfeiture is also a matter of human rights and social inequality, as forfeiture falls hardest on the poor and non-white.

Gramercy! How often do we see the ACLU and the Rio Grande Foundation working together?

The Forfeiture Act effectively eliminates civil forfeiture, and enacts measures for proper accounting and transparency regarding criminal forfeitures. Moreover, the proceeds from seized assets would go to the general fund, not the agencies' own budgets, thus eliminating the profit motive from the agencies' priorities.

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Algernon D'Ammassa: New Mexico's forfeiture act is a bold achievement