Lois Lerner’s Arrogance Results in the Waiving of Her 5th Amendment Right Against Self-Incrimination
CONFUSION ERUPTS IN IRS HEARING AFTER LOIS LERNER TRIES TO PLEAD THE 5TH — WATCH IT ALL UNFOLD
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 not 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.
A bushel of Pinocchios for IRS’s Lois Lerner
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.)
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 timelineshows 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 hadpreviously 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. (The clip is embedded below, with the question coming at 5:09.) Small wonder that Crowley is now calling for her to resign, saying that Lerner lied to him.
http://youtu.be/8kZABHzFa-4We gave the IRS the weekend to provide a response. A spokeswoman said the agency was not able to offer an explanation for Lerner’s remarks in time for our deadline
The Pinocchio Test
In some ways, this is just scratching the surface of Lerner’s misstatements and weasely wording when the revelations about the IRS’s activities first came to light on May 10. But, taken together, it’s certainly enough to earn her four Pinocchios.