IRS Scandal: the Fifth Amendment, Useful Tools and Sacrificial Lambs

Lois Lerner, director of the IRS Exempts Division while the IRS was treating conservative groups with the same even-handedness displayed by a group of foxes debating the rights of chickens, took the Fifth Amendment, the privilege against self incrimination, before Congress last week.  She did it in an odd way, first making a self serving statement and then taking the Fifth.  I found that passing strange as what is drummed into most defense attorneys about the Fifth Amendment is that you have your client assert the privilege and say absolutely nothing else.  The reason for this is that there is ample case law in criminal cases where defendants have inadvertently waived the privilege because they couldn’t resist the temptation to shoot their mouths off instead of simply asserting the privilege.  As far as I know there is no case law about whether you can waive your Fifth Amendment privilege before Congress by doing so, but a cautious defense attorney would have warned her strenuously against making the “I didn’t do nothin'” opening statement.  I assume that she either got bad legal advice or she got good advice and chose to ignore it.

Of course the atmospherics of Lerner taking the Fifth is disastrous for Lerner and her political string pullers at the White House.  Most people come into contact with the Fifth Amendment when they see video of some gangster asserting the privilege.  Although a court of law or a jury may construe nothing from the assertion of the Fifth Amendment, people who are not judges or serving on juries are perfectly free to make the reasonable assumption that someone would assert the privilege against self-incrimination only when they had good reason to believe they had violated the law.

As she goes under the bus, Lerner perhaps is pondering how she got there.  The explanation for that is simple:  she was a useful tool for the Obama White House in its desperate drive beginning in 2010 to slow the momentum of the Tea Party, a momentum that in 2010 gave the Republicans historic victories in the midterm election and was a mortal threat to the re-election of Obama in 2012.  The IRS was thus a key component in the reelection strategy of Obama by stopping the formation of tax exempt tea party groups and harassing those trying to organize such groups.

In Lerner, the men and women who pulled her strings at the White House found a willing accomplice.  During the Clinton administration, when she was head of the enforcement division of the Federal Election Commission, Lerner developed a well-earned reputation for targeting Republican and conservative groups:

Engle describes Lerner as pro-regulation and as somebody seeking to limit the influence of money in politics. The natural companion to those views, he says, is her belief that “Republicans take the other side” and that conservative groups should be subjected to more rigorous investigations. According to Engle, Lerner harbors a “suspicion” that conservative groups are intentionally flouting the law.

General counsel’s reports composed during Lerner’s tenure at the FEC confirm Engle’s recollections of a woman predisposed to back Republicans against the wall while giving Democrats a pass. Though Noble, then the FEC’s general counsel, is listed as the author of the reports, sources familiar with the commission say that given Lerner’s position, she would have played an integral role shaping their conclusions. “As head of enforcement at the FEC, Lois would have approved the drafting of every general counsel’s report,” Engle tells me.

Contributions from foreign nationals, in one instance, drew more scrutiny when they reached Republican coffers than when they fell into the hands of Democrats.

After the Republican National Committee, under the chairmanship of Haley Barbour, established the nonprofit National Policy Forum in the run-up to the Republican takeover of Congress in 1994, the Democratic National Committee accused him of using the organization to funnel money from a Hong Kong national to the RNC. The foreigner in question had loaned the National Policy Foundation $1.6 million, and the foundation used the money to repay a debt to the RNC. The FEC’s general counsel concluded that both Barbour and RNC treasurer Alec Poitevint had “knowingly and willfully” violated federal law.

A prolonged investigation led to a stalemate among the FEC commissioners, who deadlocked along party lines and took no action against Barbour or the RNC. A subsequent investigation by the Department of Justice concluded that the loan did not constitute a political contribution.  

Democrats in a similar predicament were treated more leniently, with Lerner in one instance citing a donor’s political clout as an excuse to avoid investigating him. The House Oversight Committee was not pleased, and in 1998 held a hearing on the FEC’s failure to investigate the fundraiser, Howard Glicken, who was accused of soliciting a $20,000 contribution for the Democratic Senatorial Campaign Committee from a German national. (Glicken later pleaded guilty to doing so and paid a $40,000 fine to the FEC.) With Lerner seated before him, committee chairman Dan Burton (R., Ind.) read aloud from the general counsel’s report she had approved: “While this office would generally recommend a reason to believe finding against Mr. Glicken and conduct an investigation into the two DSCC contributions, because of the discovery complications and time constraints, this office does not now recommend proceeding against this individual or the DSCC.”

Her animus was starkly displayed in her efforts against the Christian Coalition:

James Bopp Jr., who was lead counsel for the Christian Coalition at  the time, tells THE WEEKLY STANDARD the Christian Coalition  investigation was egregious and uncalled for. “We felt we were being  singled out, because when you handle a case with 81 depositions you have  a pretty good argument you’re getting special treatment. Eighty-one  depositions! Eighty-one! From Ralph Reed’s former part-time secretary to  George H.W. Bush. It was mind blowing,” he said.

All told  the FEC deposed 48 different people—and that doesn’t begin to account  for all the FEC’s requests for information. Bopp further detailed  the extent of the inquiry in testimony delivered before the congressional Committee on House Administration in 2003:

The FEC conducted a large amount of paper discovery during the administrative investigation and then served four massive discovery requests during the litigation stage that included 127 document requests, 32 interrogatories, and 1,813 requests for admission. Three of the interrogatories required the Coalition to explain each request for admission that it did not admit in full, for a total of 481 additional written answers that had to be provided. The Coalition was required to produce tens of thousands of pages of documents, many of them containing sensitive and proprietary information about finances and donor information. Each of the 49 state affiliates were asked to provide documents and many states were individually subpoenaed. In all, the Coalition searched both its offices and warehouse, where millions of pages of documents are stored, in order to produce over 100,000 pages of documents.

Furthermore, nearly every aspect of the Coalition’s activities has been examined by FEC attorneys from seeking information regarding its donors to information about its legislative lobbying. The Commission, in its never-ending quest to find the non-existent “smoking gun,” even served subpoenas upon the Coalition’s accountants, its fundraising and direct mail vendors, and The Christian Broadcasting Network.

One of the most shocking things about the current IRS scandal is the revelation that the agency asked one religious pro-life group to detail the content of their prayers and asked clearly inappropriate questions about private religious activity. But under Lerner’s watch, inappropriate religious inquiries were a hallmark of the FEC’s interrogation of the Christian Coalition.

Go here to The Weekly Standard to read the rest.

New revelations about Lerner are a daily occurrence, and the most recent one has an Illinois angle.

Soon after the IRS story broke, Al Salvi told Illinois Review that it was IRS official Lois Lerner who represented the FEC in a Democrat complaint against him. According to Salvi, Lerner was, without question, politically motivated, and went so far as to make him an offer: “Promise me you will never run for office again, and we’ll drop this case.”

Salvi declined her offer, and ran for Illinois Secretary of State in 1998.

But when he saw Lerner plead the Fifth Amendment before Congress last week, he recognized her. “That’s the woman,” Salvi said. “And I didn’t plead the Fifth like she did.”

In 2000, a federal judge dismissed the FEC case against him, clearing Salvi’s name and reputation.

Now with the revelations about Lerner, the IRS, and the intriguing connection to Durbin, Salvi shared with Illinois Review his experience with Lois Lerner.

Go here to Illinois Review to read the rest.  Lerner was perfect for the Obama administration:  a bureaucrat skilled in using her positions within the bureaucracy to serve her political predilections.  Unfortunately for Lerner her utility for the Obama administration as a useful tool ended with the IRS Inspector General’s report that detailed some of the discrimination that the IRS had been engaged in.  The Obama administration had Lerner apologize for this just before the release of the report.  Lerner was too foolish to realize that in the Obama administration her unofficial designation had changed from useful tool to sacrificial lamb.