Commentary Magazine


Topic: Fifth Amendment

Re: Doesn’t Know Math But Can Count to Five

I need to add to what I wrote last night about Internal Revenue Service official Lois Lerner when I noted the irony of her decision to plead her Fifth Amendment right to avoid self-incrimination when she testified before Congress today. Lerner made good on her promise to refuse to testify today, though she prefaced that with an assertion that she “did nothing wrong” and had broken no law. It’s an interesting legal question as to whether that claim constituted a waiving of her rights to avoid incriminating herself but, like House Oversight Committee Chair Darrell Issa suggested, we’ll leave that for the lawyers to sort out.

Issa let Lerner leave the hearing without being made to repeat her refusal to testify in a sign that he wants to avoid having the committee being criticized for partisanship or grandstanding. But it’s certain that we haven’t heard the last of Lerner, nor is it likely that she will escape further scrutiny. But I should have noted in my previous post some background about her career that was provided by our colleagues at the Weekly Standard on Monday afternoon. Mark Hemingway’s piece gives the background about Lerner’s role in the political vendetta against the Christian Coalition that was pursued by the Federal Elections Commission during her time working at that agency. This is further evidence not only of the liberal bias of many of the civil servants at the IRS and other government agencies but of a possible political motivation for the targeting of Tea Party groups.

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I need to add to what I wrote last night about Internal Revenue Service official Lois Lerner when I noted the irony of her decision to plead her Fifth Amendment right to avoid self-incrimination when she testified before Congress today. Lerner made good on her promise to refuse to testify today, though she prefaced that with an assertion that she “did nothing wrong” and had broken no law. It’s an interesting legal question as to whether that claim constituted a waiving of her rights to avoid incriminating herself but, like House Oversight Committee Chair Darrell Issa suggested, we’ll leave that for the lawyers to sort out.

Issa let Lerner leave the hearing without being made to repeat her refusal to testify in a sign that he wants to avoid having the committee being criticized for partisanship or grandstanding. But it’s certain that we haven’t heard the last of Lerner, nor is it likely that she will escape further scrutiny. But I should have noted in my previous post some background about her career that was provided by our colleagues at the Weekly Standard on Monday afternoon. Mark Hemingway’s piece gives the background about Lerner’s role in the political vendetta against the Christian Coalition that was pursued by the Federal Elections Commission during her time working at that agency. This is further evidence not only of the liberal bias of many of the civil servants at the IRS and other government agencies but of a possible political motivation for the targeting of Tea Party groups.

As Hemingway writes:

Lerner was appointed head of the FEC’s enforcement division in 1986 and stayed in that position until 2001. In the late 1990s, the FEC launched an onerous investigation of the Christian Coalition, ultimately costing the organization hundreds of thousands of dollars and countless hours in lost work. The investigation was notable because the FEC alleged that the Christian Coalition was coordinating issue advocacy expenditures with a number of candidates for office. Aside from lacking proof this was happening, it was an open question whether the FEC had the authority to bring these charges. 

In one respect, that case had frightening parallels to the Tea Party targeting:

One of the most shocking things about the current IRS scandal is the revelation that the agency asked one religious pro-life group to detail the content of their prayers and asked clearly inappropriate questions about private religious activity. But under Lerner’s watch, inappropriate religious inquiries were a hallmark of the FEC’s interrogation of the Christian Coalition.

No one reading about that case can be surprised that some of the same shenanigans Lerner and her mates pulled at the FEC were repeated at the IRS. It also makes it difficult for anyone to claim that political prejudices were not part of the motivation for what happened at the IRS. Let’s hope Congress or a special prosecutor eventually gets to the bottom of it.

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Doesn’t Know Math But Can Count to Five

Lois Lerner seemed to have gotten her proverbial 15 minutes of fame after being the first one to let slip the news that the Internal Revenue Service had targeted conservative groups when determining the nonprofit status of organizations during a conference call with reporters May 10. Before the nation began to even fully digest the enormity of this scandal, they had a good laugh at the IRS official’s expense because in answer to a question about the percentage of groups that had been unfairly treated she responded, “I’m not good at math.” That earned her a moment of derision in what has now become a classic Jon Stewart rant on Comedy Central, as he noted that both her “apology” and her inability to do simple arithmetic undermined the credibility of the party of big government as well as that of the tax agency.

But while Lerner may not know math, she can count to five. We learned this afternoon that when she answers her subpoena to testify about the affair before the House Oversight and Government Reform Committee, she would invoke her Fifth Amendment right against self-incrimination and refuse to answer questions posed by Congress. The agency that once was best known for being used to nail criminals like Al Capone, who could not be successfully prosecuted for their violent crimes but were vulnerable because they didn’t pay enough taxes, is now going to have a top official acting like a mafia button man on the hot seat.

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Lois Lerner seemed to have gotten her proverbial 15 minutes of fame after being the first one to let slip the news that the Internal Revenue Service had targeted conservative groups when determining the nonprofit status of organizations during a conference call with reporters May 10. Before the nation began to even fully digest the enormity of this scandal, they had a good laugh at the IRS official’s expense because in answer to a question about the percentage of groups that had been unfairly treated she responded, “I’m not good at math.” That earned her a moment of derision in what has now become a classic Jon Stewart rant on Comedy Central, as he noted that both her “apology” and her inability to do simple arithmetic undermined the credibility of the party of big government as well as that of the tax agency.

But while Lerner may not know math, she can count to five. We learned this afternoon that when she answers her subpoena to testify about the affair before the House Oversight and Government Reform Committee, she would invoke her Fifth Amendment right against self-incrimination and refuse to answer questions posed by Congress. The agency that once was best known for being used to nail criminals like Al Capone, who could not be successfully prosecuted for their violent crimes but were vulnerable because they didn’t pay enough taxes, is now going to have a top official acting like a mafia button man on the hot seat.

Let’s concede that Lerner is well within her rights in pleading the fifth since she, as much as anyone involved in this disaster, is very much in legal peril for countenancing if not abetting blatantly illegal behavior by government personnel even if we are now told that she eventually attempted to broaden the discrimination to all groups, rather than just Tea Partiers.

It should also be conceded that an outright refusal to testify is, in some ways, a lot more honest than what we’ve heard from her boss Steven Miller both last week and today, as he continued to claim that he didn’t lie to Congress last year when he told them targeting wasn’t going on. The same goes for his predecessor Douglas Shulman, who also assured Congress nothing like that was happening even though an investigation of this behavior was already going on. Their assurances that they hadn’t told anyone in the Treasury Department about any of this are also suspicious. Especially since we are also informed, as the New York Times reports, that Deputy Treasury Secretary Neal S. Wolin “learned of the inspector general’s audit into the targeting effort in the summer of 2012.” Congress will be curious about what, if anything, he did with that information that somehow remained secret during the presidential campaign.

What we hope to eventually learn is what Miller, Shulman and Lerner seem unable or unwilling to tell us: who ordered IRS personnel to do the targeting and why they did it. Up until now all we’ve gotten from the agency and its defenders are stories about overwork, understaffing and incompetence that are worse than no explanation at all.

Unless we get some straight answers to the contrary, there is no reason for anyone to avoid thinking about connecting the dots between the demonization of the Tea Party and other conservatives groups by the administration and the liberal media and the IRS actions. The spectacle of Ms. Lerner channeling the testimony of one of Jimmy Hoffa’s criminal associates while being pressed by the young Bobby Kennedy when she appears before Congress tomorrow will be a sobering moment for an administration and a liberal movement that has doubled down in recent years on its determination to expand the scope and the power of the federal government and its most intrusive agency.

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