Lois Lerner – the former senior IRS official at the heart of the IRS targeting scandal – once again pleaded the Fifth Amendment this week refusing to answer any questions about the scheme aimed at silencing conservatives.
Yet, her silence this week is very telling. It raises 3 important questions, without her even saying a word.
Was It All About Spite Against Conservatives?
After nearly a year of silence, Lois Lerner’s attorney indicated to the House Oversight and Government Reform Committee that Lerner was ready to talk. But then just days before the hearing, according to the Committee, her camp made a stipulation that she must have another week’s delay to give her “a breather” before cooperating (as if the last 10 months of obfuscating the truth wasn’t enough, she needed another week).
Mrs. Lerner had pleaded the Fifth once before, and while there is a legal dispute as to whether she waived that right, she clearly had the constitutional right to refuse to testify. So it would have been no surprise if she continued to assert her Fifth Amendment right and defend her position that she never waived that right.
Yet, according to the Committee, she indicated that she would in fact testify, but then refused to testify in an apparent dispute about the timing of the hearing.
In fact, after once again pleading the Fifth, her attorney is now indicating that her obligation to Congress (not just this committee) is done. Her attorney’s told reporters after the hearing, “She’s not going to provide information to another committee that she didn’t provide to this committee.”
Why would she tell the committee after 10 months that she was finally ready to talk, then demanding another week, and then say that she will never talk? She knows full-well that she holds a key to unveiling the shroud surrounding the targeting of conservatives. Was this latest charade with Congress just to spite conservatives?
She has a long record of spiteful behavior toward conservative free speech. Congressional investigations have revealed that she was disturbed by the Citizens United ruling, saying that something must be done to “fix the problem.” Like many other more outspoken liberals, she allegedly could not stand the influence that conservative groups were having. She said that conservative groups were “very dangerous” and was intricately involved in the decision to send their applications through a “multi-tier review.” She apparently even participated in plans to restructure the IRS rules against these groups while the targeting was going on, “off plan” so as to stay out of the public light. Even going back to her days at the FEC, evidence of how she harassed conservatives has surfaced. She has repeatedly shown nothing but spite for conservatives’ free speech rights.
Her latest stunt with the congressional committee appears to be nothing more than Lucy once again pulling the football out from under conservatives in the search for the truth.
Does She and the Obama Administration Have Something to Hide?
In her testimony this week, or lack thereof, Lerner once again pleaded the Fifth. Yet, a lot has changed from the first time she “testified” nearly 10 months ago. The Obama Administration’s DOJ has all but closed its investigation, saying that no criminal charges are expected to be filed. The President made an about turn, after first expressing outrage, now calling the entire situation a “phony scandal.” Democrats have rallied around the IRS and its supposedly maligned employees, calling for an end to the investigation. President Obama even said there wasn’t even a “smidgen of corruption” and continues to support Lois Lerner’s original assertion that this all can be blamed on some low-level IRS employees in Cincinnati.
The Left has nearly completely exonerated Mrs. Lerner, even holding her up as a heroic symbol. Others on the Left are championing her cause, calling for the IRS to “redoubled” its efforts.
If there isn’t even a “smidgen of corruption” in the entire IRS scandal, why plead the Fifth? Moreover, why plead the Fifth before Congress, but give a full interview to a supposedly impartial DOJ investigation led by a top Obama donor?
Someone is hiding something. The Left can continue its “there’s no there there” mantra, but the fact remains that conservative Americans were targeted for their political beliefs – some still haven’t received a determination letter to this day.
The Fifth Amendment is a convenient defense now, but it will not be soon. Criminally, pleading the Fifth protects you and can never be used against you. In the civil context however, as in our ongoing lawsuit representing 41 conservative and pro-life groups targeted by the IRS, pleading the Fifth can be used as an inference against you.
If someone has something to hide, and it appears that someone does, the truth will eventually come out.
Is Lois Lerner Concerned She Waived the Fifth Amendment?
The third thing we can glean from her appearance before Congress this week is that Lois Lerner and her attorneys appear very concerned about her waiving the Fifth Amendment. Unlike her first appearance, where she brazenly asserted her innocence multiple times before shrinking behind the Fifth Amendment and refusing to answer tough question, she was very careful this time.
Other than taking the oath to tell the truth, she only said one very carefully crafted phrase, “My counsel has advised me that I have not waived my constitutional rights under the Fifth Amendment, and on his advice, I will decline to answer any question on the subject matter of this hearing.”
She even refused to answer a question about whether she would be willing to consider testifying later. As his final question, Chairman Darrel Issa asked her:
On Saturday, our Committee’s General Counsel sent an e-mail to your lawyer stating:
“I understand … that Ms. Lerner is willing [to] testify, and she is requesting a one week delay. In talking to the Chairman, wanted to make sure we had this right.”
Your lawyer gave a one word e-mail response: “yes.”
Are you still seeking this discussed delay?
Her response was to once again assert her Fifth Amendment right not to answer even that question. The fact that she would not address this question made it very clear that she and her counsel are still very concerned about the fact that she may indeed have waived her Fifth Amendment right by asserting her innocence at the first hearing. She wasn’t going to make that mistake again. Her change in tactic this week just goes to show that her camp views her first assertions as a mistake.
Whether this mistake is fatal to her attempt to prevent the truth from coming to light is yet to be seen. Speaker Boehner and Chairman Issa aren’t buying it, and could move to begin contempt proceedings as early as next week.
Mrs. Lerner’s contempt for conservative free speech is clear, her allies on the Left have circled the wagons, and she continues to assert her constitutional rights, while the division of the IRS she ran for years trampled the constitutional rights of conservative Americans.
The fight for the truth, for justice for those Americans who were abused by their government, is far from over.
Matthew Clark is Associate Counsel for Government Affairs and Media Advocacy with the ACLJ. A lifelong citizen of the Commonwealth of Virginia, he lives with his wife and three boys in Northern Virginia. Follow Matthew Clark: @_MatthewClark.