Rep. Trey Gowdy (R-S.C.) was the first to point out that IRS official Lois Lerner had possibly waived her Fifth Amendment privilege at a House hearing by making an opening statement in which she denied any wrongdoing.

Judge Andrew Napolitano explained yesterday that Lerner - who oversaw tax-exempt organizations when the IRS was admittedly targeting conservative groups - had gotten bad legal advice. He believes she should, under the law, have to answer questions that pertain to the opening statement she made.

Gowdy, a former federal prosecutor, spoke with Bill Hemmer this morning on America's Newsroom, explaining that he was moved to speak up after Rep. Elijah Cummings (D-Md.) said he wanted the hearing to be run like a federal court proceeding.

"In a courtroom, you don't get to say, 'I didn't rob the bank but I'm not going to answer the prosecutor's questions,'" said Gowdy.

At the hearing, he demanded that Lerner stay and answer questions. Chairman Darrell Issa (R-Calif.) appeared unsure about the legal issues at play and dismissed Lerner. Now, Issa says he will wait for legal guidance before deciding whether to bring Lerner back to the witness stand.

Gowdy said the decision about how to proceed is up to Issa and Speaker Boehner. But he said "you can't make people talk" so Lerner may just take the Fifth again. Gowdy said he wants to see the appointment of a special prosecutor that has the power to offer immunity and issue subpoenas.

"There are limits to what Congress can do with criminal actions."