Issa said Lerner 'waived' her rights when she made her opening statement. Issa: Lerner lost her rights

Lois Lerner might win the legal battle but she’s prolonging the political war.

Instead of simply taking the scorn of lawmakers for a day, repeatedly invoking the Fifth Amendment to avoid self-incrimination, and then moving on, she chose defiance.


And her bravado has prompted House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) to say she has waived her constitutional right to not comment.

( PHOTOS: Who’s taken the Fifth?)

Now, he plans to haul the director of the IRS’s tax-exempt department back to the committee for questioning.

“When I asked her her questions from the very beginning, I did so so she could assert her rights prior to any statement,” Issa told POLITICO. “She chose not to do so — so she waived.”

Lerner shocked the committee room in the opening moments of Wednesday’s hearing by delivering an opening statement denying any wrongdoing and professing pride in her government service.

( Also on POLITICO: Lois Lerner pleads the Fifth)

“I have not done anything wrong,” said Lerner, who triggered the IRS scandal on May 10 by acknowledging that the agency had singled out conservative groups applying for tax exemptions. “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 committee.”

Beyond that, she refused to answer the committee’s questions, immediately triggering a debate among panel members over whether she had just voided her Fifth Amendment rights.

At the very least, Lerner’s speech prolonged the process. She’s almost certain to be back on Issa’s turf when Congress returns in June from the Memorial Day recess. If she refuses to talk then, the committee could ultimately pursue a contempt charge.

Issa said late Wednesday that he’s consulting the House parliamentarian and outside counsel to determine how to proceed.

Legal experts, however, say Issa’s argument that Lerner has waived her Fifth Amendment rights might not be as strong as he suggests.

“I don’t think a brief introductory preface to her formal invocation of the privilege is a waiver,” said Stan Brand, a Washington lawyer who was the general counsel for the House of Representatives from 1976 to 1983.

( Full coverage of IRS controversy)

For one, this is Congress, not a courtroom, says James Duane, a professor at Regent University School of Law.

“[T]his woman was not the defendant,” he said, rejecting comparisons between the committee room and a court room. “This is not a trial.”

Maryland Rep. Elijah Cummings, the top Democrat on the Oversight committee, also said he didn’t think Lerner waived her Fifth Amendment protections.

“I don’t think her counsel would have allowed her to give a statement knowing that the very purpose of him being here — for her to assert her fifth amendment rights — would be damaged if she made a statement,” he told reporters.

But Paul Rothstein, a law professor at Georgetown University, disagreed saying she “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.”

She “voluntarily talked about a lot of the same things then lawmakers wanted to ask her about” in her opening statement.

“In that situation, when you voluntarily open up the subject they want to inquire in to, and it’s all in the same proceeding, that does result in a court criminal case … that would be a waiver,” he said in an interview with POLITICO.

That was Rep. Trey Gowdy’s argument. The South Carolina Republican and former federal prosecutor wanted to keep Lerner on the stand during today’s hearing and was the first to argue that she waived her rights.

He said lawmakers should at least be able to ask her questions about assertions she made in her statement.

“Think back to a trial,” he said. “You want to tell the jury you didn’t commit the crime but you don’t want the prosecutor to ask you any questions after you do it?”

He added: “That never would be allowed to happen.”

Brand said the bigger problem for Lerner may be that she has made herself available to Congress in the past.

“The more serious question is whether any of her earlier congressional appearances before other committees constituted a waiver,” Brand said. “That in turn may depend on whether any of those appearances were ‘compelled’ — that is, pursuant to a subpoena.”

Overall, he doesn’t expect her back unless a deal is struck with Issa.

“Bottom line, I think we will hear no more from Ms. Lerner” unless she is provided immunity, he said.

The debate is far from over. Issa ended the hearing on Wednesday by keeping the committee in recess instead of formally adjourning — a move that allows him to recall Lerner without issuing a new subpoena.