Top IRS Official To Invoke Fifth Amendment Before Congress

160px-IRS.svgI have previously stated that I fail to see the basis for criminal charges in the IRS scandal. Prior administrations have faced allegations of targeting opposing groups and such matters have been treated as abuses but not crimes. Yet, various news sites are reporting this morning that Lois Lerner, the director of the IRS division, will invoke the Fifth Amendment before the House Oversight and Government Reform Committee. Her counsel asked the Committee to withdraw the demand for her testimony in light of her intention to refuse to testify on the grounds that it may incriminate her.

It is always problematic for a government official to refuse to testify. It is certainly her right as an individual to refuse to do so. However, it is also a refusal to comply with a constitutionally mandated process of oversight by Congress.

Of course, Colonel Oliver North took the fifth before Congress during the Iran Contra investigation and was later embraced as an iconic hero by conservatives and Fox News as a television host.

From a legal standard, there is always an advantage to making such a claim. It can force a grant of immunity that can insulate your client from potential criminal charges. Moreover, any appearance has only downsides for the client. Lerner has become the lightning rod in the scandal and members are out for blood . . . her blood. Even if her decisions were not crimes, she could be charged with any statements that are viewed as false or misleading. In this case, Lerner is facing questions of allegedly incomplete or misleading information given to the Committee on at least four occasions last year. That would be a stronger basis for a criminal charge than the original decisions targeting conservative groups.

The House oversight committee has indicated that Lerner was is under subpoena and would be required to appear in the morning. It is clear that the photo op of an Obama official invoking the fifth amendment is too good to pass up.

While Lerner has every right (and perhaps reason) to invoke the Fifth, it does not prevent her being removed from her duties since such testimony is part of government service, particularly for a high-ranking official. It is clearly a difficult issue since a person is not supposed to be punished for the use of a constitutional right. Yet, this is refusing to carry out important government function. She is being called to an oversight committee to address allegations of government wrongdoing. On that basis alone, should she be removed from her current office in your view?

Source: NY Times

37 thoughts on “Top IRS Official To Invoke Fifth Amendment Before Congress”

  1. Talk to the Merit Systems Protection Board. A dumb as* incompetent Administrative Judge from Chicago. He doesn’t know shi+. That idiot found me guilty of something I wasn’t even accused of. Then talk to the Federal Circuit. They affirmed because the Board didn’t make any legal errors.

  2. ROBERT SAMPIER 1, May 22, 2013 at 2:55 pm

    That would cost taxpayers a lot of backpay.

    Dan pointed out that:

    Threatening [a] government employee’s job to compel his/her testimony immunizes any statements made, Garrity v. NJ, 385 U.S. 493 (1967), and wavier of the Fifth Amendment privilege cannot be required as a condition of employment, Gardner v. Broderick, 392 U.S. 273 (1968).

    Shouting does not change that.

  3. At least she had the courtesy to show up.

    Rove and Meyers and at least one other Bush staffer didn’t, for a couple of years. Then a deal (to forestall an appeals court decision) was brokered (by the Obama Justice department and John Conyers) that allowed them to testify behind closed doors and limit their testimony to exclude any information touching President Bush. And there were serious allegations as I recall, that the DOJ was firing people that would not target Democrats. Anybody remember Don Siegalman? Yea, it’s a club and we are so not in it.

    The scandal here isn’t that some groups were being scrutinized but (as someone else on the blawg observed) that every one of them weren’t.

  4. DogBiscuitGuy 1, May 22, 2013 at 11:36 pm

    Forget about your legal grievances. There’s something you lawyers don’t understand. You’re useless.

  5. JT: How about a topic about whistleblowers who work for the government and who seek to have their whistleblowing activity protected under the First Amendment. As BarkinDog alluded to above.

  6. Hey folks. I got a novel one for you. She has the right under the First Amendment to petition her government for redress of grievances. She feels that the unfair use of a tax shelter is bad for America. She works for the government. She wants to expose a violator of the law. She sees a pattern of tea party pot people abusing the law. Her activity is protected speech under the First Amendment. The right to petition your government for redress of grievances is the strongest Prong of the First Amendment. Dont leave home without it. Invoke that First Amendment Right as well as the Fifth.
    The rest of you can fathom this as a defense cant you?

  7. I didn’t invoke the fifth amendment. I refused to resign. I will name names. The MSPB. The Federal Circuit. The Supreme Court. I still have all the documents.

    No bragging rights. I’ll do it anyway.

    I told all the government administrators including Geithner, Shulman, and Obama in writing. In that order. It was completely ignored.

    Stay out of Libya. You might want to stay away from Syria too.

  8. Houston Tax Lawyer, I think I would hire you to represent me on tax matters. However, I wouldn’t call on you for nonpartisan advice.

  9. 1. It is not a scandal. There were errors in judgment but when do errors in judgment produce a scandal> Was Bush pressing us into Iraq a scandal. Both situations are errors in judgment. The wrong thing was done in each case, but that does not a scandal make.

    2. Nor is it a crime. An error in judgment is a class that covers a lot more than criminal conduct.

    3. The real scandal is the witch hunt and feeding frenzy going on, not in the search for truth, but for partisan advantage. The Republicans would like to destroy the IRS and destroy Obama. This feeding frenzy thus, to them does double duty, at least in their minds. (I don’t think that, ultimately, the American public will buy the notion.

    4. Ms. Lerner has a constitutional right to assert the Fifth Amendment. The right claims that they are the truth defenders of the Constitution. So why not defend her exercise of the Fifth Amendment rather than forcing her before Congress to assert the privilege? That can’t happen in a court room where rights are preserved and celebrated. It can happen in Congress because little people (Issa and his ilk) have the power to force her to come there and assert the Fifth Amendment privilege that her lawyers, in asking to be relieved of the appearance, already said she would assert. In court cases, the prosecution is not allowed to comment on a defendant’s assertion of the Fifth Amendment; why? because the trier of fact may draw unfair conclusions from it. Why should Congress be less concerned about fairness? We all know it is just politics. One could infer from this behavior that Congress hates the IRS and Obama more than they like the Constitution. Just weird coming from people who claim that the Constitution is their guiding star and was to force their version of the Constitution on everyone else.

    5. Does anyone seriously think Issa is interested any any truth other than one he can contort to get Obama?

    Houston Tax Lawyer

  10. apparently, she should not have made a statement as she forfeited her immunity or some sort of legal something. Issa is calling her back to testify.

    Rut roh.


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