May 23 2013
Lois Lerner, an IRS official at the heart of the current scandal, became the face of the IRS yesterday when she appeared—briefly—before the House Oversight and Government Reform Committee: haughty, unaccountable, self-righteous, and determined to play by her own set of rules.
Lerner read a statement proclaiming her innocence and then refused to take questions. Rep. Darrell Issa, chairman of the committee, usually so on target, acted like a citizen called in for an audit—he meekly asked Ms. Lerner if there were anything she might like to discuss. But legally, Lerner might have blundered: you can’t testify and then invoke the Fifth Amendment.
Former prosecutor Andrew McCarthy writes:
There’s an old scam criminal defendants occasionally pull. They give a bit of exculpatory direct testimony – just enough to gaze plaintively at the jurors and swear, cross-their-hearts, that they are pure as the driven snow. Then, just as the moment of submitting to cross-examination approaches, they announce that, even though they’re really, truly innocent, they just can’t answer the mean prosecutor’s questions – on advice of counsel, of course, in reliance on the Fifth Amendment.
Everyone familiar with this area of the law knows that this is contemptuous conduct. To testify, by definition, is to agree to submit to cross-examination. Once you begin to answer questions – i.e., to testify – you waive your right not to testify – i.e., not to answer questions.
But it appears that the IRS is used to breaking the rules. Larry Kudlow argues that the IRS targeting of conservative groups was nothing short of an attempt to put the tea party out of business and thus avoid a repeat of the electoral disaster the Democrats suffered in the 2010 midterms.
More alarming, if possible, than the potentially criminal activity (Kudlow again) at the IRS, is the entire government’s evasion of responsibility. In a way, the entire Obama administration has followed the Lerner Principle: loudly proclaim innocence and then refuse to testify.
The person we most need to hear from is President Obama. Oh, wait, he only knows what he reads in the newspapers. The Wall Street Journal sums up the president’s position in an editorial this morning:
While the White House continues to peddle the story of a driverless train wreck, taxpayers are being treated to a demonstration of the dangers of an unwieldy and unaccountable administrative state. Look, Ma, no hands!
The strangest claim of the Obama White House is that the president’s chief of staff was told about the problems at the IRS but didn’t tell the president. This is presented, as always, by the Obama administration as high-mindedness.
Let me get this straight: It would have been wrong for the president to know, but it's okay for his chief of staff to know. I don't get it. Couldn’t the chief of staff have picked up the phone and interfered as easily as the president? And would it have really been wrong for the president to be informed of what was going on? This doesn't sound plausible. The Wall Street Journal points out what is wrong with the administration's assertion:
The Treasury Inspector General's report, for starters, was an audit, not an inviolable independent investigation. He lacked subpoena power and could bring no criminal charges. Having the President know of the IRS's mistakes so that he could act to correct the problem was not a bridge too far or even clouding the purity of the process. Those things could have been done simultaneously without compromising Treasury's investigation.
Are Lois Lerner and President Obama two peas in a pod, both eager to avoid responsibility for what happened on their watch? Discuss among yourselves.