One of the enduring mysteries of the IRS scandal — at least if one listens to MSNBC and other media outlets who think of it as a “phony scandal” — is why Lois Lerner took the Fifth twice when called to testify to it. People invoke the Fifth Amendment to keep from incriminating themselves through their own testimony, which is a basic human right recognized by the Constitution. The use of it by a high-ranking government official when questioned by Congress about activities conducted during official duties does, however, strongly suggest that something illegal was going on, even if the invocation of the right itself cannot be used as evidence in trial. After all, if the scandal has no basis in fact and the IRS was just doing its job, then Lerner should have no problem testifying on how she performed her duties — information which Congress is entitled to demand.
House Oversight chair Darrell Issa issued a 141-page report yesterday which clarified why Lerner was so keen to avoid testifying. In what the Washington Post called a “scathing” account of her actions, the majority report from Oversight accuses Lerner of obstruction and misleading Congress, while attacking conservative groups and attempting to hide her activities from scrutiny:
Rep. Darrell Issa issued scathing conclusions Tuesday about Lois Lerner’s involvement in the Internal Revenue Service’s scrutiny of advocacy groups.
The California Republican and chairman of the House Oversight and Government Reform Committee released a 141-page report saying Lerner “led efforts to scrutinize conservative groups while working to maintain a veneer of objective enforcement.” He also accused her of obstructing the oversight committee’s investigation and misleading Congress. …
Issa’s report said Lerner was trying to undermine the Supreme Court’s Citizens United decision.
“The Supreme Court dealt a huge blow, overturning a 100-year-old precedent that basically corporations couldn’t give directly to political campaigns, and everyone is up in arms because they don’t like it,” Lerner said at a Duke University forum in 2010. “The Federal Election Commission can’t do anything about it. They want the IRS to fix it.”
Issa said Lerner made “false or misleading statements” to the panel by denying in February 2012 that the IRS changed its screening criteria and by saying the agency’s review methods did not exceed its usual standards.
The IG’s audit found that Lerner ordered her division to alter the screening criteria in June 2011 because they focused too much on groups’ policy positions. It also determined that the agency overreached in seeking donor information from nonprofit groups.
Other IRS officials told the panel they could not remember such previous donor requests.
The report itself pulls no punches about Lerner’s activities:
When Congress asked Lerner about a shift in criteria, she flatly denied it along with allegations about disparate treatment.15 Even as targeting continued, Lerner engaged in a surreptitious discussion about an “off-plan” effort to restrict the right of existing 501(c)(4) applicants to participate in the political process through new regulations made outside established protocols for disclosing new regulatory action.16 E-mails obtained by the Committee show she and other seemingly like-minded IRS employees even discussed how, if an aggrieved Tea Party applicant were to file suit, the IRS might get the chance to showcase the scrutiny it had applied to conservative applicants.17 IRS officials seemed to envision a potential lawsuit as an expedient vehicle for bypassing federal laws that protect the anonymity of applicants denied tax exempt status.18 Lerner surmised that Tea Party groups would indeed opt for litigation because, in her mind, they were “itching for a Constitutional challenge.”19
Through e-mails, documents, and the testimony of other IRS officials, the Committee has learned a great deal about Lois Lerner’s role in the IRS targeting scandal since the Committee first issued a subpoena for her testimony. She was keenly aware of acute political pressure to crack down on conservative-leaning organizations. Not only did she seek to convey her agreement with this sentiment publicly, she went so far as to engage in a wholly inappropriate effort to circumvent federal prohibitions in order to publicize her efforts to crack down on a particular Tea Party applicant. She created unprecedented roadblocks for Tea Party organizations, worked surreptitiously to advance new Obama Administration regulations that curtail the activities of existing 501(c)(4) organizations – all the while attempting to maintain an appearance that her efforts did not appear, in her own words, “per se political.”
Lerner’s testimony remains critical to the Committee’s investigation. E-mails dated shortly before the public disclosure of the targeting scandal show Lerner engaging with higher ranking officials behind the scenes in an attempt to spin the imminent release of the TIGTA report.20 Documents and testimony provided by the IRS point to her as the instigator of the IRS’s efforts to crack down on 501(c)(4) organizations and the singularly most relevant official in the IRS targeting scandal. Her unwillingness to testify deprives Congress the opportunity to have her explain her conduct, hear her response to personal criticisms levied by her IRS coworkers, and provide vital context regarding the actions of other IRS officials. In a recent interview, President Obama broadly asserted that there is not even a “smidgeon of corruption” in the IRS targeting scandal.21
If this is true, Lois Lerner should be willing to return to Congress to testify about her actions. The public needs a full accounting of what occurred and who was involved. Through its investigation, the Committee seeks to ensure that government officials are never in a position to abuse the public trust by depriving Americans of their Constitutional right to participate in our democracy, regardless of their political beliefs. This is the only way to restore confidence in the IRS.
John McKinnon writes at the Wall Street Journal that this looks like a proposal for a contempt charge against Lerner. It also notes that Lerner took a particular interest in a Democrat bête noire:
The report also appears aimed at building a case for seeking to hold Ms. Lerner in contempt of Congress. She has declined to answer congressional questions, citing her Fifth Amendment privilege against self-incrimination.
Newly disclosed emails show Ms. Lerner also took an interest in the application for tax-exempt status by Crossroads GPS, a big conservative player in the 2012 election that was co-founded by Karl Rove.
“Can you please send me a copy of the Crossroads [GPS] application? Lois wants Judy to take a look at it so she can summarize the issues for Lois,” says an IRS email from mid-2011 that is quoted in the report.
Paul Mirengoff wrote yesterday that the report shows that “[t]here can be little doubt that if Lerner were to answer Committee questions under oath, she would incriminate herself. And if she answered truthfully, she would also incriminate the administration she faithfully served.” Meanwhile, Scott Johnson points out a rather predictable gap in the coverage of the report. Be sure to catch up with Power Line’s better coverage.