Once they get a special prosecutor and get her into a grand jury this won’t matter.
Check it out:
It is not clear that Lois Lerner, the embattled head of the IRS’s tax-exempt organizations office, waived her Fifth Amendment right against self-incrimination, as has been suggested by commentators including Harvard Law Professor Alan Dershowitz, when she briefly appeared before the House Oversight Committee investigating the targeting of conservative organizations.
Lerner proclaimed her innocence before asserting her Fifth Amendment right not to incriminate herself and refusing to answer any questions from members of the committee. She then walked out of the hearing room. Lerner said this:
I have not done anything wrong. 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 congressional committee.
If this were a criminal prosecution, this would probably be an easier call. As the U.S. Supreme Court explained in 1951 in Rogers v. United States, a case involving a federal grand jury investigation of the Communist Party of Denver, a witness can waive her Fifth Amendment right against compelled self-incrimination by failing to assert it in a timely manner. That is why criminal defense lawyers advise their clients to provide their names to investigators but not answer any other questions. If after an investigation, Lerner had voluntarily agreed to testify in a criminal case brought against her by the Justice Department, no court would allow her to invoke the Fifth Amendment to avoid answering questions from prosecutors during cross examination about her assertions during direct testimony that she had not done anything wrong, broken any laws or IRS rules, or provided false information to Congress.