She’s the first casualty of the IRS scandal and hasn’t answered many of the questions posed by Congress, beyond only a vow of innocence and her name, rank and serial number. The silence may not last much longer.
A new, 141-page report by the House Committee on Oversight and Government Reform makes a detailed case that she deliberately sought to obstruct the investigation. Two years ago, before she took the Fifth Amendment guarantee against self-incrimination, Ms. Lerner was positively chatty in informal briefings with the committee staff.
She said emphatically that the IRS had not changed the criteria used to evaluate which organizations qualify for tax-exempt status. Tea Party groups had complained that their applications were being held in limbo while left-wing groups’ applications sailed through easily.
When Tea Party groups angrily complained about IRS requests for information about their members, Ms. Lerner told investigators that it was “ordinary” for the IRS to ask such groups to provide a full list of the names of donors and how much they gave.
She put the assertion in writing in a letter to the committee. These were identified as Lie No. 2 and Lie No. 3. The IRS commissioner’s chief of staff said this had never been done in the history of the agency.
Ms. Lerner likely expected that “this, too, shall pass.” Democrats repeatedly said that “there’s no scandal here.” Only a handful of reporters bothered to pursue the story.
Ms. Lerner apparently was alarmed when the Supreme Court upheld First Amendment rights in the Citizens United case in 2010, which overturned the Federal Election Commission’s restrictive prohibitions of political speech.
Ms. Lerner, in an email message, told her colleagues that it was up to the executive branch to “undermine” the Citizens United decision.
The crucial question remains. Was Ms. Lerner acting alone or at the direction of the White House? Her refusal to answer questions leaves Congress with the responsibility to pursue and punish what is clearly contempt of Congress.
Sitting across the table from an IRS auditor, answering some questions and declining to answer others, is not the way to behave in an audit of tax returns.
We do not recommend it. The IRS presumes it has a right to answers. Contempt proceedings would provide Ms. Lerner far more due-process protections than her agency allows ordinary citizens, but even these rights have limits.
Ms. Lerner, like the rest of us, is entitled to her Fifth Amendment privilege, but she is not entitled to answer some questions under oath and give no answer to follow-up questions. There is no right to use the Fifth Amendment as a cafeteria, to pick and choose which questions to answer.