Did IRS official Lois Lerner waive her right to silence?

IRS official Lois Lerner, the director of the agency's division that singled out Tea Party groups applying for tax-exempt status, invoked her Fifth Amendment right against self-incrimination before a House oversight committee hearing on Wednesday. But before she took the Fifth, she made a short statement. (Watch below.)

After talking about her career and describing what the IRS inspector general reported and the House committee's accusation that she provided false information, Lerner said:

Rep. Trey Gowdy (R-S.C.), a former federal prosecutor, immediately pounced, saying Lerner "waived her right to Fifth Amendment privilege by issuing an opening statement." In court, he continued, "you don't get to tell your side of the story and then not be subjected to cross examination — that's not the way it works."

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Rep. Darrell Issa (R-Calif.), the committee chairman, agreed that Lerner "effectively waived" her right to take the Fifth, and he's vowing to haul her back in for questioning, when he would presumably inform her that she has to testify. Issa closed the hearings without formally adjourning, meaning he can call Lerner back after Congress' week-long Memorial Day recess.

Did Lerner really relinquish her Fifth Amendment rights? Can Issa compel her to testify? "I don't think the answer is clear, as there are no cases quite like it," says Orin Kerr at The Volokh Conspiracy. Generally speaking, "a witness can't testify about her version of the facts and then invoke the Fifth Amendment when facing cross examination," so it sort of depends on whether you think Lerner testified to any facts in her statement.

No, Lerner "is in trouble," Harvard's Alan Dershowitz tells Newsmax. "You can't simply make statements about a subject and then plead the Fifth in response to questions about the very same subject," he adds. "Once you open the door to an area of inquiry, you have waived your Fifth Amendment right" against self-incrimination on that subject.

That might be true if Lerner were a criminal defendant in an actual criminal trial, Regent University's James Duane, a Fifth Amendment expert, tells New York. Trying to apply the same rules to a congressional hearing, while "extremely imaginative," is "mistaken." Lerner didn't get to choose whether to testify, as in a criminal hearing, and when people "are involuntarily summoned before grand jury or before legislative body, it is well settled that they have a right to make a 'selective invocation,' as it's called, with respect to questions that they think might raise a meaningful risk of incriminating themselves." Duane adds that in Lerner's case, it isn't even a close call:

Outside the Beltway's Doug Mataconis is more succinct:

At the very least, Georgetown's Paul Rothstein tells Politico, Lerner "has run a very grave risk of having waived her right to refuse to testify on the details of things she has already generally talked about."

Got it? As is evident, "like many legal questions, it depends on whom you ask," says Juliet Eilperin at The Washington Post. Almost everyone agrees that making a statement before taking the Fifth was a risk, however. So what happens next? "In order to compel Lerner to testify, Congress would have to hold her in contempt," explains Eilperin.

That's the law. What about the politics? Issa shouldn't have recessed the hearing without forcing Lerner to "stay and answer, even if her answers were continuing to take the Fifth, if only for the political spectacle," says Ross Kaminsky at The American Spectator. But Issa has redeemed himself by vowing to call Lerner back in, Kaminsky says.

Why get bogged down in a legal fight over Lerner? asks Hot Air's Allahpundit. Issa will either drop the idea of calling Lerner back to testify or "he'll bring her back simply to have her sit there and plead the Fifth repeatedly in response to the committee's questions," but he won't hold her in contempt.