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Thursday, May 23, 2013

A Bad Day for Lois Lerner

“In a time of universal deceit - telling the truth is a revolutionary act.” — George Orwell

Today was a bad day for Lois Lerner the director of the IRS’ Exempt Organizations Division as she was called to testify before Darrel Issa’s House Oversight and Government Reform Committee.

The Internal Revenue Service official at the center of the political targeting scandal invoked her constitutional right not to answer lawmakers’ questions on Wednesday, but defiantly asserted that she has done nothing wrong — prompting confusion about how exactly she was using her right not to incriminate herself.

House Oversight Committee Chairman Darrell Issa (R-Calif.) told Politico that Lois Lerner, who leads the IRS office that determines which organizations receive tax-exempt status, will be brought before his panel again.

Lerner was the first to publicly disclose earlier this month that the IRS gave extra scrutiny to conservative groups.

“I have not done anything wrong, I have not broken any laws, I have notirs_political_groups_16377741 violated any IRS rules or regulations and I have not provided false information to this or any other congressional committee,” Lerner told House Oversight and Government Reform Committee members. “While I would very much like to answer the committee’s questions today, I have been advised by my counsel to assert my constitutional right not to testify or answer questions related to the subject manner of this hearing.”

Lerner added that by asserting her right not to testify, “I know that some people will assume I have done something wrong. I have not. One of the basic functions of the Fifth Amendment is to protect innocent individuals, and that is the protection I am invoking today.”

Issa noted during the hearing that because Lerner had asserted her innocence in her opening statement, “I believe you have not asserted your rights but have effectively waived your rights” and took her refusal to answer as a refusal to testify.

An incensed Rep. Trey Gowdy (R-S.C.) spoke up that Lerner should testify, agreeing that she already waived her constitutional privilege.

“You don’t get to tell your side of the story and not be subjected to cross-examination. That’s not the way it works. She waived her right to Fifth Amendment privilege by issuing an opening statement, she ought to stand here and answer our questions,” Gowdy said, earning applause from the audience.

After a key agency IRS official today invoked her Fifth Amendment right not to incriminate herself during congressional testimony, Oversight and Government Reform Chairman Darrell Issa said he will review legal precedent in order to determine whether Lois Lerner, the director of Exempt Organizations at the IRS, could be held in contempt of Congress.

Although Lerner, who’s at the center of the controversy, refused to answer questions from members of the committee, she read a brief statement into the record declaring her innocence. Furthermore, at the request of Issa, Lerner authenticated a document containing her written answers for the inspector general’s investigation of the matter.

Those actions prompted members of the committee to question whether Lerner effectively waived her right to invoke the Fifth Amendment.

“She just testified. She just waived her Fifth Amendment right to privilege,” Rep. Trey Gowdy, R-S.C., a former federal prosecutor, said. “You don’t get to tell your side of the story and then not be subjected to cross-examination. That’s not the way it works.”

Although Issa dismissed Lerner, at the end of the hearing he announced that the committee would recess rather than adjourn while he determines whether Lerner should be recalled before the panel.

“Ms. Lerner may have waived her Fifth Amendment rights by addressing core issues in her opening statement and the authentication afterwards,” Issa, R-Calif., said as he brought the hearing to a close. “Although I excused Ms. Lerner subject to a recall, I am looking into the possibility of recalling her and insisting that she answer questions in light of a waiver.”

A Republican committee aide said the application of the Fifth Amendment has nothing to do with House or committee rules, but rather is a constitutional question. The aide said courts have interpreted that the Fifth must be asserted in the absolute, not partially.

“Congress is respective when witnesses assert the Fifth, but if it’s not asserted properly, you’re not refusing to testify based on constitutional protection,” the aide explained. “Because you don’t want to answer certain questions, there’s a potential contempt of Congress.”

Sources also believe Lerner’s decision to read a statement into the record while invoking the Fifth may have been unprecedented for congressional testimony.

Rep. Elijah Cummings, the top Democrat on the committee, said he does not personally believe Lerner waived her rights with her actions today, but he said the committee should look into the issue.

“This is not a courtroom,” Cummings, D-Md., said. “In a courtroom that might have been the case. It’s a legal question.”

Cummings added that Lerner was acting on advice of counsel, and he doubted her legal team would have permitted her to deliver a statement if it would jeopardize her right to invoke the Fifth.

One constitutional expert noted that generally people who claim the Fifth in hearings give no statement and it would be “unusual” to give a statement and still claim the Fifth.

“Most witnesses claiming the Fifth will not tempt fate by answering any questions,” said Michael Gerhardt, a University of North Carolina constitutional law professor who specializes in the relationship between Congress and the executive branch. “I suppose the witness might argue he or she is claiming the Fifth for limited purposes but then needs to have someone spell out the relevant scope.”

Evert legal expert I have heard on TV today stated the same thing. You cannot assert your Fifth Amendment Right to some things and not others. It pertains either to all or nothing. When she made her opening statement and proclaimed:

“I have not done anything wrong, I have not broken any laws, I have not violated any IRS rules or regulations and I have not provided false information to this or any other congressional committee.”

She opened herself to answering any and all questions pertaining to the three items she skated in that statement; “broken any laws”, “violated IRS rules”, and “provided false information.”

According to Politico:

“Lois Lerner might win the legal battle but she’s prolonging the political war.

Instead of simply taking the scorn of lawmakers for a day, repeatedly invoking the Fifth Amendment to avoid self-incrimination, and then moving on, she chose defiance.

And her bravado has prompted House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) to say she has waived her constitutional right to not comment.

Now, he plans to haul the director of the IRS’s tax-exempt department back to the committee for questioning.

“When I asked her questions from the very beginning, I did so she could assert her rights prior to any statement,” Issa told POLITICO. “She chose not to do so — so she waived.”

Lerner shocked the committee room in the opening moments of Wednesday’s hearing by delivering an opening statement denying any wrongdoing and professing pride in her

“I have not done anything wrong,” said Lerner, who triggered the IRS scandal on May 10 by acknowledging that the agency had singled out conservative groups applying for tax exemptions. “I have not broken any laws. I have not violated any IRS rules or regulations, and I have not provided false information to this or any other committee.”

Beyond that, she refused to answer the committee’s questions, immediately triggering a debate among panel members over whether she had just voided her Fifth Amendment rights.

At the very least, Lerner’s speech prolonged the process. She’s almost certain to be back on Issa’s turf when Congress returns in June from the Memorial Day recess. If she refuses to talk then, the committee could ultimately pursue a contempt charge.

Issa said late Wednesday that he’s consulting the House parliamentarian and outside counsel to determine how to proceed.


Paul Rothstein, a law professor at Georgetown University, disagreed saying she “has run a very grave risk of having waived her right to refuse to testify on the details of things she has already generally talked about.”

She “voluntarily talked about a lot of the same things then lawmakers wanted to ask her about” in her opening statement.

“In that situation, when you voluntarily open up the subject they want to inquire in to, and it’s all in the same proceeding, that does result in a court criminal case … that would be a waiver,” he said in an interview with POLITICO.

That was Rep. Trey Gowdy’s argument. The South Carolina Republican and former federal prosecutor wanted to keep Lerner on the stand during today’s hearing and was the first to argue that she waived her rights.

He said lawmakers should at least be able to ask her questions about assertions she made in her statement.”

When the hearing concluded six hours later, Issa announced that he might recall Lerner before the committee and review whether she waived her Fifth Amendment rights by giving an opening statement and answering questions about the document.

Accordingly, Issa said the hearing “stands in recess, not adjourned.”

Lerner’s attorney had informed the committee on Tuesday that she would invoke the Fifth Amendment, but committee aides said she was required to appear anyway.

Once Lerner left the committee room, lawmakers turned their attention primarily to Douglas Shulman, the Bush administration appointee who led the IRS during President Obama’s first term. He was joined at the witness table by J. Russell George, the Treasury inspector general for tax administration, and Treasury Deputy Secretary Neal Wolin.

Rep. Elijah E. Cummings (Md.), the ranking Democrat on the House panel, criticized Shulman for not correcting his March 2012 testimony after learning that IRS employees had indeed targeted conservative groups.

“It seems to me that you would come back even if it were a phone call or a letter,” Cummings said. “I mean, common sense.”

At various points Issa charged that George, who has been largely spared the grillings reserved for other officials in previous hearings, failed to keep Congress informed about his findings as his audit began last year.

Issa told Inspector General George that “we do not wait 10 months to find out that there’s a there there” and called the delay “the greatest failing of an otherwise well-regarded inspector general.”

But George reminded the committee that his office conducted an audit, not a formal investigation. He added that there are “established procedures for conducting an audit” to ensure fairness and noted that information given to Capitol Hill “sometimes is not retained on the Hill.”

Under questioning by Rep. Jim Jordan (R-Ohio), who chairs an oversight subcommittee that first probed allegations of IRS wrongdoing, Shulman said he did not discuss the IRS targeting of conservative groups with the White House during visits to the White House that Jordan said numbered more than 100 between 2010 and 2011.

“It would not have been appropriate to have a conversation with anyone at the White House about the subject of discriminating against conservative groups,” Shulman said.

When Shulman was asked about his 118 visits to the White House he claimed he did not recall all of those visits and later clarified that he had visited the White House complex — which includes the adjoining Eisenhower Executive Office Building and the New Executive Office Building located across the street — for “The Easter Egg Roll with my kids” and for various meetings regarding the IRS budget, the enforcement of tax laws, efforts to improve the federal finance aid process and meetings on the implementation of the 2010 health-care reform law.

So where is Issa’s Oversight and Government Reform Committee going now? No one seems to know. I have always maintained that Issa’s committee was too large and did not have the legal counsel that was available to the Watergate Committee — no Sam Dash. It appears as though the members of the committee each have an agenda they want to push with no clear mission. At times there seems to be more speech making than fact-finding. The real solution is for the House to appoint a select committee with subpoena power, crackerjack legal counsel, and adequate investigative resources.

In my view Lois Lerner is a key figure to the unraveling of the IRS scandal. She has a record that needs to be looked into and according to the Washington Post she has been feeding Congress nothing but lies and obfuscations. In fact the Post’s fact checkers have given her four Pinocchios for just about everything she has said:

“In the days since the Internal Revenue Service first disclosed that it had targeted conservative groups seeking tax-exempt status, new information has emerged from both the Treasury inspector general’s report and congressional testimony Friday that calls into question key statements made by Lois G. Lerner, the IRS’s director of the exempt organizations division.

The clumsy way the IRS disclosed the issue, as well as Lerner’s press briefing by phone, were seen at the time as a public relations disaster. But even so, it is worth reviewing three key statements made by Lerner and comparing them to the facts that have since emerged.

But between 2010 and 2012, we started seeing a very big uptick in the number of 501(c)(4) applications we were receiving, and many of these organizations applying more than doubled, about 1500 in 2010 and over 3400 in 2012.”

Lerner made this comment while issuing a seemingly impromptu apology at an American Bar Association panel. (It was later learned that this was a planted question — more on that below.) In her telling, the tax-exempt branch was simply overwhelmed by applications, and so unfortunate shortcuts were taken.

But this claim of “more than doubled” appears to be a red herring. The targeting of groups began in early 2010, after the Supreme Court’s decision in Citizens United v. FEC was announced on Jan. 21. The ruling led to increased interest in a tax-exempt status known as 501(c)(4). Most charities apply under 501(c)(3), but under 501(c)(4), nonprofit groups that engage in “social welfare” can also perform a limited amount of election activity.

At first glance, the inspector general’s report appears to show that the number of 501(c)(4) applications actually went down that year, from 1,751 in 2009 to 1,735.

But it turns out that these are federal fiscal-year figures, meaning “2010” is actually Oct. 1, 2009 to Sept. 30, 2010, so the “2010” year includes more than three months before the Supreme Court decision was announced.

Astonishingly, despite Lerner’s public claim, an IRS spokeswoman was not able to provide the actual calendar year numbers. By allocating one-quarter of the fiscal year numbers to the prior year, we can get a very rough sense of the increase on a calendar-year basis. (Figures are rounded to avoid false precision; 2012 is not possible to calculate.)

  • 2009: 1745
  • 2010: 1865
  • 2011: 2540

In other words, while there was an increase in 2010, it was relatively small. The real jump did not come until 2011, long after the targeting of conservative groups had been implemented. Also, it appears Lerner significantly understated the number of applications in 2010 (“1500”) in order to make her claim of “more than doubled.”

I think you guys were reading the paper as much as I was. So it was pretty much we started seeing information in the press that raised questions for us, and we went back and took a look.”

Here, Lerner suggests that she found out about this issue only when news reports appeared in February and March 2012 about tea party groups complaining that they were being targeted. But the IG timeline shows this claim to be false.

According the IG, Lerner had a briefing on the issue on June 29, 2011, in which she was told about the BOLO (“Be On the Look Out”) criteria that included words such as “tea party” or “patriots.” The report says she raised concerns about the wording and “instructed that the criteria be immediately revised.” She continued to be heavily involved in the issue in the months preceding the new reports, according to the timeline.

“I don’t believe anyone ever asked me that question before.”

This was Lerner’s excuse during the media call for why she had not publicly addressed the issue before.

But in congressional testimony Friday, outgoing acting director Steven T. Miller said he had talked with Lerner about arranging to make a statement at a May 10 conference sponsored by the American Bar Association, knowing that the IG report would soon be released.

Lerner then contacted a friend, Celia Roady, a tax attorney with the Washington firm Morgan Lewis, to get her to ask a question about the targeting, according to a statement by Roady on Friday. (Roady had previously denied this was a planted question when asked directly by participants at the meeting.)

So Lerner was dissembling when she suggested that a simple well-aimed question prompted the disclosure.

In fact, just two days before the ABA conference, Lerner appeared before Congress and was asked by Rep. Joseph Crowley (D-N.Y.) about the status of investigations into 501(c)(4) groups. She provided a bland answer about a questionnaire on the IRS Web site, failing to take the opportunity to disclose the results of the probe. Small wonder that Crowley is now calling for her to resign, saying that Lerner lied to him. “

Lerner has a history of going after conservative and Christian groups. In the 1990's, Lerner also served as chief of enforcement at the Federal Elections Commission.

Under her direction, the FEC undertook the largest enforcement action in its history — suing the Christian Coalition for violating campaign laws. The Christian Coalition won, but in one deposition, FEC lawyers asked a defendant if televangelist Pat Robertson prayed for him.

James Bopp, the Christian Coalition's lawyer, said he was "shocked and appalled" by that.

"Both political activity and religious activity are specifically protected by the First Amendment," he said.

When Bopp learned years later that Lerner had been promoted to an IRS position, he became concerned.

"She was in effect being promoted for what she had done at the Federal Election Commission and now was going to be expected to replicate that at the IRS and now we know that's exactly what happened," he said.

Lerner is represented by lawyer William W. Taylor, who is noted for winning a dismissal of all charges against former IMF director Dominique Strauss-Kahn in a high-profile sexual assault case.

Lerner said at Wednesday's hearing that she had done nothing wrong. Well that is to be seen. She is an out of control civil servant with a history of violations against the Constitution. All she needed was an administration that would encourage her. Perhaps Issa’s or any other committee will have to grant her some level of immunity for her to open up and tell the truth. She is a defiant woman who seems to believe she is beyond the law. If granted the umbrella of immunity and she lies or obfuscates the immunity will be lifted and she will then be the subject of a grand jury. It’s time for Issa to take off the gloves and treat go after her in the manner the Watergate Committee went after John Dean. She is a servant of the people, we are not her serfs.

In 2004 when the Abu Ghraib prisoner abuse scandal rocked the Pentagon and the nation the press and Congress were furious with the Bush administration and Donald Rumsfeld, the Secretary of Defense, in particular. Photos were published in the media on almost a daily basis while liberal and conservative commentators pushed the story.

Most of these offenses were committed by young, untrained and unsupervised National Guard soldiers of the 320th Military Police Battalion. After public outrage and investigations by the Army CID eleven of these soldiers were charged and suffered Courts Martials or non-judicial discipline. The commander of the prison, Brig. General Janis Karpinski was busted to Colonel. The prison terms ranged from 10 years to six months.

As distasteful and controversial as Abu Ghraib was it should be remembered that the abuses took place in a time of armed combat in a very dangerous war zone where the coalition troops were suffering 50 to 100 casualties per week. The military did take action and punished the perpetrators. Unlike the abuses at Abu Ghraib the IRS abuses were against American citizens exercising their First Amendment rights. It is unlikely any of the principles will be disciplined or fired. They will surf the Potomac from agency to agency seeking new positions under the protection of their union. All We, the people can do is to urge of representatives to be vigilant and tireless in their pursuit of the truth.

As an aside to this post Deadline Breaking News has reported that the Fox News Cable Channel has just scored its second-best week of the year while the liberal channel MSNBC hits a seven-year low:

“The scandals of the Obama administration seem to be hurting not just the White House but MSNBC as well, while Fox News Channel has just scored its second-best week of the year. After double-digit gains during last year’s presidential election, May 13-17 saw the progressive-aligned “Lean Forward” news network hit new lows as the IRS scandal erupted and revelations that the Justice Department secretly obtained AP records became public. With 350,000 viewers on average and 94,000 in the adults 25-54 demo, MSNBC had its least-watched and lowest-rated total-day results of the year last week. That was also the lowest total-day demo result the network has had since the week of June 26-July 2, 2006, when MSNBC pulled in just 83,000 viewers among adults 25-54, according to Nielsen data.”

Perhaps the American people are more interested in these scandals as the pundits would leave to you believe.

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