Orin Kerr on Lerner: “I’m not enough of a Fifth Amendment nerd to have strong views on which side is right. So I posed the question earlier today to a listserv of criminal procedure professors that includes some serious Fifth Amendment experts. Opinions were somewhat mixed, but I think it’s fair to say that the bulk of responders thought that Lerner had not actually testified because she gave no statements about the facts of what happened. If that view is right, Lerner successfully invoked her Fifth Amendment rights and cannot be called again. But this was not a unanimous view, and there are no cases that seem to be directly on point. So it’s at least a somewhat open question.”