03.05.2014 1

Why is Lois Lerner pleading the Fifth?

Lois LernerBy Robert Romano

A lot has happened since former Internal Revenue Service (IRS) Exempt Organizations head Lois Lerner refused to testify in May 2013 about the agency targeting of the tea party and other 501(c)(4) organizations, asserting her Fifth Amendment right against self-incrimination.

For starters, it turns out the scandal goes much higher than was originally stated.

Then-managing director at the D.C.-based technical office Holly Paz has since testified that in Feb. 2010 “a case was identified where there was potential for political campaign activity, and that was when they reached out to Washington and the case was transferred to Washington.”

Paz said she then forwarded it to agency tax specialist and attorney Carter Hull, who developed many of the invasive follow-up questions that attempted to probe just how political groups intended to be.

Michael Seto, the head of Hull’s unit said it was Lerner who ordered that the tea party applications be subjected to special scrutiny.

In addition, Hull said that when he met with Lerner’s senior adviser, he was told that his recommendations on the tea party applications would be first reviewed by the IRS general counsel William Wilkins, only one of two political appointments in the agency besides the commissioner.

Hull’s supervisor, Ronald Shoemaker told investigators that the counsel’s office wanted information about the applicants’ political activities leading up to the 2010 election.

So, what began as a scandal with supposedly “low-level” employees in Cincinnati actually goes all the way to Washington, D.C. with the then-head of Exempt Organizations and the agency’s general counsel not only aware of the targeting but who were coordinating its decision-making process.

And yet, the targeting might not have been criminal after all, or so says the Department of Justice, which according to the Wall Street Journal is not planning on filing charges.

Giving the benefit of the doubt — that there is nothing in the U.S. Code that prohibits the sort of targeting that took place even though one of the Articles of Impeachment against Richard Nixon was “to cause, in violation of the constitutional rights of citizens, income tax audits or other income tax investigation to be initiated or conducted in a discriminatory manner” — then why did Lois Lerner even bother pleading the Fifth back in May?

If there was no criminal activity, in principle, then Lerner cannot incriminate herself. Lerner said it herself before the House Oversight Committee: “I have not broken any laws.”

In 2001, the Supreme Court in Reiner v. Ohio succinctly summarized some of the limits to invoking the Fifth: “the privilege’s protection extends only to witnesses who have ‘reasonable cause to apprehend danger from a direct answer.’ 341 U.S. at 486.That inquiry is for the court; the witness’ assertion does not by itself establish the risk of incrimination. Ibid. A danger of ‘imaginary and unsubstantial character’ will not suffice. Mason v. United States, 244 U.S. 362, 366, 61 L. Ed. 1198, 37 S. Ct. 621, 4 Alaska Fed. 571 (1917).”

The Mason case is particularly telling, wherein a witness was compelled to testify because the testimony was not, in fact, incriminating of any crime.

Particularly in the context of a congressional hearing where such testimony would likely advise on the side of Congress prohibiting such conduct in the future, she should not be shielded. What she has to say is critical to the committee’s investigation.

But perhaps Lerner is fully aware that prosecution is not possible, and there are other reasons she does not want to testify. If not to protect herself, then perhaps her invocation is protecting against something or somebody else.

Of course, that her testimony might be merely embarrassing, professionally damaging, or politically problematic to the Obama administration do not appear to be sufficient reasons to exempt her.

And perhaps fully aware of that, Lerner’s lawyer has offered another obstacle, saying she fears for her life.  In a letter to House Oversight Committee Chairman Rep. Darrell Issa (R-Calif.), attorney Bill Taylor wrote, “I advised the staff that calling Ms. Lerner knowing that she will assert her rights was not only improper but dangerous. Ms. Lerner has been the subject of numerous threats on her life and safety, and on the life and safety of her family. I left with the staff recent evidence of those threats.”

If so, might we suggest witness protection? In all seriousness, material witnesses in murder trials can be compelled to testify — even if they fear for their lives. If she has a legitimate fear, she can request protection, but her refusal cannot be sustained based on what we now know.

Lerner is running out of excuses. So maybe she just needs to come clean, fess up and be done with it. Or be found in contempt of Congress and face even more consequences.

Robert Romano is the senior editor of Americans for Limited Government. 

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