- The Washington Times - Wednesday, April 1, 2015

The Obama administration informed Capitol Hill this week that it won’t prosecute former IRS executive Lois G. Lerner for contempt of Congress, concluding that she did not waive her Fifth Amendment rights to avoid answering questions when she was called to testify nearly two years ago.

Ms. Lerner, the figure at the center of the IRS tea party targeting scandal, is still facing investigation over the intrusive scrutiny of conservative groups, but the decision by U.S. Attorney Ronald Machen does away with at least some of her legal jeopardy.

Still, Republicans were furious with the decision by Mr. Machen, who issued it on Tuesday, his final day in office before returning to the private sector, saying it raises major questions over the separation of powers and heightens tensions between President Obama and the GOP-led House that voted to hold Ms. Lerner in contempt.

For her part Ms. Lerner, through her lawyer, sounded a triumphant note.

“We are gratified but not surprised by today’s news,” said William W. Taylor III, who has handled Ms. Lerner’s defense. “Anyone who takes a serious and impartial look at this issue would conclude that Ms. Lerner did not waive her Fifth Amendment rights. It is unfortunate that the majority party in the House put politics before a citizen’s constitutional rights.”

The House Oversight Committee had tried to question Ms. Lerner about the tea party targeting soon after it was revealed in May 2013. Ms. Lerner, a longtime federal bureaucrat, attended the hearing, delivered an opening statement professing her innocence, and then declined to answer any of the panel members’ questions, citing her Fifth Amendment right against self-incrimination.

Republicans on the committee said her opening statement amounted to a waiver of those rights, saying she shouldn’t be allowed to have her say and then refuse to be cross-examined by committee members.

But Mr. Machen said making a general statement of innocence “did not amount to ‘testimony’ about the actual facts,” so Ms. Lerner was in the clear.

“The Constitution would provide Ms. Lerner with an absolute defense if she were prosecuted for contempt,” Mr. Machen said in a statement.

Perhaps just as important as his decision not to prosecute was Mr. Machen’s defense of his ability to make such a decision in the first place.

Mr. Machen said the House has constitutional powers to call witnesses and to hold them in contempt when they violate the rules, but said the executive branch has the power to decide whether or not to carry out the actual prosecution.

Some Republicans charged that Mr. Machen had a duty to follow through once the House held Ms. Lerner in contempt, in a 231-187 vote last May.

Ms. Lerner retired from the IRS in 2013, keeping her pension.

Michael Steel, a spokesman for Mr. Boehner, said Mr. Obama still has an obligation to get to the bottom of the targeting scandal, and said the decision not to prosecute undercut that.

“Once again, the Obama administration has tried to sweep IRS targeting of taxpayers for their political beliefs under the rug,” Mr. Steel said. “The White House still has the opportunity to do the right thing and appoint a special counsel to examine the IRS’ actions.”

The IRS has admitted that it asked inappropriate questions and used improper screening with tea party groups’ nonprofit applications beginning in 2009 or 2010 and extending at least through 2013. Some groups caught up in the targeting are still awaiting approval — with one, the Albuquerque Tea Party, waiting more than five years.

Attorney General Eric H. Holder Jr. directed the FBI to begin a criminal investigation to see if laws were broken, and as of the middle of March that investigation was still open, according to a response the FBI sent to True the Vote, which had submitted an open-records request for Lerner records. The FBI said it couldn’t release those records, citing an exemption in law for documents that could “interfere with enforcement proceedings.”

Catherine Engelbrecht, president of True the Vote, said they are still eagerly awaiting the results of that probe, but said it’s stunning that Ms. Lerner is using the shield of the Constitution to avoid answering questions from Congress.

“The double standard is breathtaking,” Ms. Engelbrecht said. “Lois Lerner played the part of front-line operative in a targeting scandal that reveled in ‘putting politics before a citizen’s constitutional rights.’ Time and again, Lerner abused the power of her IRS position to shut down organizations whose views she did not share.”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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