Call this a dissonant note in the public defense of Lois Lerner. The IRS executive fumbled an attempt to provide cover for an IG report on political targeting in the agency that ended up making the situation worse. When called to testify, Lerner declared that she was innocent of any crime, and to prove it, she took the Fifth as soon as the House Oversight Committee finished listening to her opening statement. Facing a recall after Oversight ruled that she had effectively waived her right to remain silent, Lerner’s attorney insists that she did nothing wrong — but to answer questions about it, Lerner needs a grant of immunity from prosecution:
Embattled IRS official Lois Lerner will not testify before the House Oversight and Government Reform Committee unless she’s given immunity from prosecution, her lawyer told POLITICO Tuesday.
“They can obtain her testimony tomorrow by doing it the easy way … immunity,” William W. Taylor III said in a phone interview. “That’s the way to resolve all of this.” …
“The committee is entitled to Ms. Lerner’s full and truthful testimony without further conditions,” said panel spokesman Frederick Hill in a statement to POLITICO. “If, however, Ms. Lerner’s attorney is interested in discussing limited immunity, the committee will listen.”
Rep. Jim Jordan (Ohio), a senior oversight Republican helping oversee the IRS investigation, said the panel is still hopeful she’ll come to the committee on her own free will, arguing that questions of immunity and contempt are “down the road.”
“We hope she comes in and gives us the truth and answers questions,” Jordan said in a brief phone interview Tuesday. “If that doesn’t happen, then you cross the next bridge. … If she says, ‘No, I’m going to come in and assert my Fifth Amendment rights again and not going to speak,’ then you think about what the other options are.”
Legally, a jury is not allowed to presume guilt on the basis of an exercise of the Fifth Amendment, although that doesn’t bind anyone else from using it in their calculations. A demand for immunity is another kettle of fish altogether. That suggests that Lerner actually does have information that could lead to her prosecution if she discloses it — from her own perspective. Otherwise, why demand immunity at all? She could just as well keep her mouth shut.
That makes it sound as though Lerner’s giving a strong hint to the committee that they should be negotiating with her for this testimony. No prosecutor would make an immunity offer without first getting a proffer on what the witness has to disclose. Few witnesses or their attorneys would demand immunity without having something to tell, either, and without that “something” pointing at bigger fish to fry than themselves.
Will those negotiations take place before the next public appearance of Lerner? Probably not; the committee was understandably annoyed by Lerner’s performance the last time, and they’ll want to force her to endure another round before they get serious about determining whether a grant of immunity will prove worthwhile. Also, an immunity demand from a still-on-the-payroll, high-ranking member of the executive branch bureaucracy has to stick in the craw of a committee that has a right to the information Lerner holds without cutting deals. The fact that answers aren’t forthcoming from Lerner or her superiors is a big problem, constitutionally speaking, in and of itself.