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Handling of former IRS employee Lois Lerner makes lawyers cringe

- The Washington Times - Monday, April 7, 2014

As the House prepares for several key votes on former Internal Revenue Service employee Lois G. Lerner and potential legal action, analysts say she and her attorney have mishandled their case by picking and choosing when they want to talk, and to whom they are willing to talk.

Ms. Lerner faces a vote in the House Oversight and Government Reform Committee on Thursday that could begin the process of accusing her of contempt of Congress. The Ways and Means Committee announced that it will hold a vote Wednesday on whether to officially accuse Ms. Lerner of breaking the law by targeting tea party groups.

The congressional moves escalate House Republicans' effort to highlight Ms. Lerner's role in the IRS targeting, which has turned into a major legal battle on Capitol Hill.

Lawyers say Ms. Lerner and her legal team may have stumbled on several occasions, including by initially professing her innocence but refusing to talk to Congress last year, then agreeing to provide information to the Justice Department without any promise of immunity, and then refusing yet again to talk to House investigators about the same subject.

Hans A. Von Spakovsky, senior legal fellow at the Heritage Foundation, said courts in Washington have decided that someone can't pick and choose whom they waive their Fifth Amendment rights to, and whom they choose to speak to.

"When Lerner gave a lengthy interview to the government, she waived the Fifth. There's no doubt about it," Mr. Von Spakovsky said. "The law is crystal clear here in the District of Columbia. That means when she showed up March 5, she was obligated to provide the same information."

Ms. Lerner's legal problems could increase this week with the two committee votes. The oversight committee will consider a resolution asking to hold Ms. Lerner in contempt for refusing to testify, while the Ways and Means Committee will debate whether to refer her to the Justice Department for criminal prosecution "for violations of one or more criminal statutes based on evidence the committee has uncovered in the court of the investigation of IRS abuses."

Ms. Lerner, who retired from the IRS in September, ran the agency's division overseeing nonprofits at a time when, according to an internal audit, her division was improperly scrutinizing and delaying conservative groups' applications.

Republicans say the information they have gathered shows Ms. Lerner wanted to target tea party groups in the wake of the Supreme Court's 2010 Citizens United decision that allowed interest groups to spend more freely on issue ads during political campaigns.

Now, Democrats and Republicans are enmeshed in a legal struggle with Ms. Lerner and her attorney, William Taylor III, over her involvement in the IRS scandal and over how they have handled the aftermath.

In a letter last week, Oversight and Government Reform Committee Chairman Darrell E. Issa, California Republican, said he believed Rep. Elijah E. Cummings of Maryland, the ranking Democrat on the committee, was trying to work out a secret deal with Ms. Lerner that would involve immunity from prosecution.

"In discussions with my staff, Mr. Taylor states that his client does not fear prosecution and would not make any incriminating statements if she testified, with or without immunity," Mr. Issa wrote to Mr. Cummings. "Ms. Lerner does not require immunity to testify truthfully about facts that would not incriminate her."

He demanded that Mr. Cummings reveal any secret conversations he had with Ms. Lerner's legal team.

Mr. Cummings said it was "false and ridiculous" to say he was insisting on granting Ms. Lerner immunity and that it was Mr. Issa who raised the prospect of immunity at the first hearing last May.

"The more important question is why Chairman Issa inexplicably rejected an offer from Ms. Lerner's attorney to have her testify with a simple one-week extension — an offer that every single Democratic committee member would have accepted instantly had Chairman Issa bothered to consult with them," Mr. Cummings said. "It appears that Chairman Issa is more interested in generating partisan conflict than in obtaining the facts."

Mr. Issa, in his letter, said Mr. Taylor has given markedly mixed signals about what he would agree to on behalf of his client.

Indeed, a House counsel's memo from last month details the various offers Mr. Taylor made, including suggesting Ms. Lerner would testify if given a week's delay in March, then taking that offer, "if that is what it was," off the table. Asked specifically whether he had a request, Mr. Taylor said, "She will appear Wednesday."

Several lawyers questioned Mr. Taylor's handling of the situation from the start of the case, including Ms. Lerner's initial speech asserting her innocence.

"Her lawyer was sitting behind her, and every other lawyer in town was cringing, watching the TV screen," said one lawyer who asked not to be named, saying the legal community is small and tightly knit. But the lawyer said Mr. Taylor broke several basic rules for handling such situations, including letting his client speak and allowing his back-and-forth negotiations with Mr. Issa's committee to be put in writing.

Mr. Taylor's office declined to comment, but he has said he no longer trusted the House investigative process to be fair to Ms. Lerner.

A Democratic staffer said Mr. Issa has raised the prospects of a proffer, or agreement about the scope of information to be given, and that Mr. Taylor appeared ready to agree to one.

The staffer said that was what Mr. Cummings was trying to get to at the March 5 hearing, when Mr. Issa ended proceedings and cut off Mr. Cummings' microphone after Ms. Lerner again refused to testify.

Mr. Cummings has armed himself with legal evaluations from more than two dozen lawyers saying Ms. Lerner shouldn't face contempt charges. Mr. Issa has the House counsel's opinion saying she remains in jeopardy.

Stanley M. Brand, one of those who backed Mr. Cummings' reading, said if Republicans see the matter to the end, it will end up in court, where a final resolution likely would be years away.

"You have dueling lawyer opinions that don't really mean anything of themselves. I include myself in that. What has to happen is it has to get to a court, and the only way it's going to get to a court is if the full House of Representatives takes action to authorize litigation," he said.

Meanwhile, Republicans on the oversight committee released a staff report disputing Democrats' claims that the IRS targeted liberal groups, too.

The 141-page report says that while some liberal groups were caught up in the inappropriate scrutiny and delays, the vast majority of applications blocked were from tea party and other conservative organizations. Indeed, the first three "test" cases were all conservative groups.

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