Taking the Fifth -- What It Does (& Doesn't Do) for Lerner

Carol Platt Liebau

5/21/2013 7:49:59 PM - Carol Platt Liebau

Tomorrow, Lois Lerner -- director of Exempt Organizations at the IRS when all the targeting occurred -- is going to come to Capitol Hill and take the Fifth Amendment.  

It will be quite a spectacle.  

As a matter of law, a jury cannot use someone's invocation of the Fifth Amendment as evidence of guilt.  But we are not in a court of law -- we are in the court of public opinion, as everyone in The White House knows, and Lerner wouldn't be taking the Fifth unless she was in danger of prosecution . . . or otherwise had something to hide.  No one chooses this course in a public  matter of this kind unless the alternatives all are far worse for someone.

It's doubtful that any prosecution of Lerner could be based on her disgraceful conduct in allowing the targeting to occur.  Indeed, it is hard to see how Lerner could be prosecuted criminally for her actions as head of the EO, although the IRS could itself be sued by eligible 501(c)(3) organizations for its failure to timely process their applications.Rather, if she is truly trying to avoid prosecution herself (as opposed to simply shielding higher-ups from some other kind of disclosure), it is probably connected to her repeated untruths before Congress.

Note that Lerner can only take the Fifth in response to questions where the answer might possibly incriminate her.  That means she is obligated to answer questions that do not put her in legal jeopardy.  One question she might fruitfully be asekd follows up on an inquiry that Senator Baucus made today of Steven Miller.  Senator Baucus asked if any of the IRS employees who had drafted the "inappropriate criteria" targeting conservatives had been disciplined.  It appears none have.

But in addition, remember that -- according to the IG report, page 7 -- in June 2011, Lerner supposedly demanded that the criteria be changed after "being briefed" on them (did she know about them, incidentally, before being "briefed" on them?).  That happened, according to the report, in July 2011. Yet the criteria were changed back to focusing on organizations' policy positions in January of 2012, supposedly by the "team of specialists" at the bottom of the organizational food chain.  Lerner should be asked who these people were; whether she knew the criteria had been changed back (the report refers only to " without executive approval" without specifying which executive's approval wasn't obtained); and whether those "specialists" were disciplined or any action was taken after they supposedly flouted her directions in June 2011 to change the criteria for organizations applying for tax-exempt status.

Finally, it's also worth pointing out that Lerner has been implicated before in efforts to harass conservative organizations.  At the Weekly Standard, Mark Hemingway reports on Lerner's tenure as head of the Enforcement Office at the FEC, especially the incredibly intrusive and inappropriate investigation of the Christian Coalition.  She should be asked about that investigation and how she came to approve it, and why she thinks it was appropriate.