Posted on May 22, 2013 by Paul Mirengoff in IRS, Obama Administration Scandals

Did Lois Lerner waive her Fifth Amendment protection?

William Taylor III, the lawyer Lois Lerner selected to represent her before the House Oversight & Government Reform Committee, is part of a firm that’s about as tight with the Obama administration as it could be. According to Washingtonian Magazine, the firm, a boutique litigation shop called Zuckerman Spaeder, has sent a higher percentage of partners into the Obama administration than any other law firm.

But did Lerner’s lawyer do her a disservice today by having her make an opening statement in which she denied all wrongdoing? Rep. Trey Gowdy certainly thought so. He argued that, by denying any wrongdoing, Lerner waived her right to assert the Fifth Amendment. The theory is that a witness cannot affirmatively assert her innocence and then dodge examination about that assertion through a privilege claim.

Committee chairman Issa says he’s looking into the question of whether Lerner’s assertion of her innocence, coupled with her authentication of certain documents, constitutes a waiver. If Issa and committee counsel conclude that it does, he presumably will recall Lerner as a witness.

But Lerner’s denial of guilt was extremely general. It involved no statements about specific facts. In that sense, it seemed more analogous to a plea of “not guilty” (though there are no pleas at a congressional committee hearing) than to substantive testimony.

Does this mean that she didn’t waive the Fifth Amendment after all? To me, it seems like a close question.

That’s also the conclusion reached by Orin Kerr at the Volokh Conspiracy. Kerr contacted a list of criminal procedure professors that, he says, includes some serious Fifth Amendment experts. The result?

Opinions were somewhat mixed, but I think it’s fair to say that the bulk of responders thought that Lerner had not actually testified because she gave no statements about the facts of what happened. If that view is right, Lerner successfully invoked her Fifth Amendment rights and cannot be called again. But this was not a unanimous view, it was not based on the full transcript, and there are no cases that seem to be directly on point.

Since the question is unsettled and probably close, it seems to me that Lerner was not well-served today by her counsel, however well-connected to the Obama administration it may be.

Posted on by Paul Mirengoff in Media, Obama Administration Scandals

Investigate reporters, but only when there’s something to investigate

The emerging conservative line on the Obama administration’s aggressive investigations of journalists is that national security leaks should be dealt with by going after the leaker, not the reporter. I’ve heard this line from a number of conservative commentators, most notably Karl Rove.

I couldn’t disagree more. Reporters are not above the law. And, as John has explained, the law (per the Espionage Act, 18 US Code Section 793) prohibits the publication of classified information where such publication will damage the United States. Here is the relevant language:

Whoever, lawfully having possession of…information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates…the same to any person not entitled to receive it…shall be fined under this title or imprisoned not more than ten years or both.

Moreover, it makes no sense to enforce this law exclusively by investigating the leakers. Reporters violate the law in the open by publishing stories. Leakers violate the law behind closed doors by talking to reporters.

Good reporters don’t reveal confidential sources. Typically, therefore, investigating the reporter will be the only practical way to investigate the leaker.

The problem with the Obama Justice Department’s investigation of AP and Fox News’ James Rosen is not that reporters are being investigated aggressively. The problem is that the case that these reporters damaged American interests through their reporting seems thin to non-existent.

The temptation when yet another Obama administration scandal erupts is to reach for the nearest available argument with which to cast the administration in the worst possible light. But the temptation should be resisted if it entails making bad arguments, especially when the bad arguments display an insufficient regard for our national security.

Posted on by Steven Hayward in Islam, Terrorism

The Great Liberal Death Wish, London Edition

There’s an old saying in journalism—a story just “too good to check out.”  You can tell the media’s bias not only from what they won’t check out, but what they won’t even consider checking out, let alone reporting.

News item: a deranged young man, James Holmes, shoots up a Denver theater last summer killing 12, and ABC News’s Brian Ross goes on the air to note that there’s a “James Holmes” affiliated with a Tea Party group in the area.  Didn’t bother to check it out; it was too good not to rush to broadcast.  Turns out there was no connection.

News item: following the bombing of the Boston marathon, a host of left-leaning media types hoped it would turn out to be a “white American” and not a Muslim extremist.  NPR’s Diana Temple-Raston speculated on air that it was likely right-wing extremists behind the bombing because it was Hitler’s birthday that week, and Hitler’s birthday is “big” for the right.

News item: Terrorists behead a British soldier in broad daylight, and then proclaim to bystanders that “They won’t stop fighting until you leave us alone.”  And on the network news broadcasts I took in tonight I did not hear the word “Islamic” mentioned once in connection to the story, which even Janet Napolitano can’t spin into something other than terrorism.  Wouldn’t want to “speculate,” as Brian Ross might put it.  Despicable.  The media, that is.  Another example of Malcolm Muggeridge’s “Great Liberal Death Wish” in action.  Among the British papers, it seems only the Daily Mail and Daily Star are calling it plainly:

Click to enlarge

P.S.? Leave us alone?  Might be more reasonable if they said that in the countries they came from, instead in of one of ours.

Posted on by Paul Mirengoff in Benghazigate, Libya, Obama Administration Scandals, Obama Foreign Policy

Obama keeps hands off Benghazi terrorists while lawyers build criminal case

We’ve always viewed the Benghazi scandal in terms of (1) the Obama administration’s failure to provide requested security before the attack, (2) its conduct, or lack thereof, during the attack, and (3) its cover-up after the attack (along with, as we recently learned, its retaliation against those who didn’t feel comfortable about the cover-up). But there’s always been a fourth element — the administration’s failure to bring the attackers to justice, as Obama promised to do during his reelection campaign.

Now, there’s news on that front. AP reports that the FBI has identified five men involved in the Benghazi attack, but has not yet done anything to bring them to justice.

According to AP, “the men remain at-large.” Why? Because, although the Obama administration believes it “has enough evidence to justify seizing them by military force as suspected terrorists. . .there isn’t enough proof to try them in a U.S. civilian court as the Obama administration prefers.”

The evidence includes pictures of three of the five men taken by security cameras at the U.S. facility in Benghazi during the attack. There are also intercepts of at least one of them bragging about taking part. And some of them have been in contact with al Qaeda.

This evidence may or may not be sufficient to convict the men of a crime in a U.S. court, but it provides a sufficient basis to kill them for being part of a force of terrorists that engaged in an act of war against America in which Americans were killed.

In war, if we come across the remnants of a hostile army, we don’t arrest the combatants and haul them off for a trial. We either demand their surrender or attack them without warning.

It doesn’t matter whether we can show that the hostiles personally killed anyone or even that they personally committed hostile acts. Their participation in the hostile force is enough.

Accordingly, there are two appropriate ways of dealing with those we have positively identified as being part of the group that attacked our facilities in Benghazi — kill them (my preference) or capture and hold them. We should not defer action while we try to build a criminal case.

One hopes, but doesn’t confidently believe, that the administration’s decision to take no action yet against those who participated in the Benghazi attack rests on diplomatic considerations, not a fetish about trying terrorists in U.S. courts. Perhaps, to give Obama the benefit of the doubt, he and John Kerry fear that a U.S. strike or abduction in Libya would jeopardize the Libyan government and increase the likelihood of its replacement by a more radical cohort.

Kerry’s role in briefing the press about the situation suggests that Obama is, indeed, being driven by diplomatic, rather than jurisprudential, considerations. And we know that, to his credit, Obama has been willing to take out terrorists with drones.

But Obama’s approach in Benghazi doesn’t make much sense even from a diplomatic perspective. Assume that we come up with evidence against certain terrorists that satisfies Justice Department lawyers that these individuals can be convicted in a U.S. court. What then?

We still need to apprehend the terrorists. And opponents of the Libyan government won’t be any more forgiving if it cooperates with the U.S. in seizing and removing them to the U.S. for trial. Similarly, if the U.S. acts without the government’s cooperation, the regime will lose credibility to about the same extent as it would if we went ahead and acted now.

When Obama promised that we would bring the Benghazi terrorists to justice, he didn’t condition this on the cooperation or the feelings of the Libyan government. And for good reason.

Our national security depends on responding forcefully, and I would say lethally, against those who are involved in attacks that kill Americans. That interest cannot be subordinated to the goal of appeasing leaders of failing states.

Obama was willing to pull the trigger in Pakistan, notwithstanding the adverse consequences to the Pakistani government, or U.S. relations with it, of our incursion. Pakistan is far more important in scheme of things than Libya.

Thus, if Obama continues to fiddle and diddle in Libya, the fourth prong of the Benghazi scandal may become the most shameful.

Posted on by John Hinderaker in Immigration, Terrorism

I Think They’re Trying to Tell Us Something

One of my favorite adages goes like this: Any damn fool can learn from his own experience, what you want to do is learn from other people’s experience. Actually, you could say that the ability to learn from other people’s experiences is the only thing that makes human progress possible.

The Europeans have had a lot of bad experiences. A few of them we have learned from; most, sadly, we haven’t. But let’s just focus on one issue for a moment: immigration. Europeans decided some years ago that it would be a good idea to import lots of North African and Asian Muslim immigrants. They didn’t think it made much difference whether these immigrants were compatible with them culturally, or even whether they were interested in assimilating. Nor were they overly concerned about the employment prospects of the immigrants and their descendants, especially in the long term. Every European who voiced reservations about this policy was labeled “far right.” So any potential opposition was easily squelched.

This afternoon, two Muslim terrorists lay in wait for a British soldier in broad daylight in southeast London, armed with knives and a machete. Accounts are somewhat confused; as usual, the Daily Mail is first with the details, which may or may not prove to be accurate. The attack took place only 200 yards from the soldier’s barracks, in front of a large number of witnesses. At least one witness says the two Muslims first ran into the soldier in their car, then jumped out and attacked him with their knives and machete. Some accounts say they beheaded the soldier, but I am not sure this has been confirmed.

The blood-soaked terrorists hung around for quite a while afterward. Some accounts say it took as much as 20 minutes for the police to arrive; others say the police came quickly. The terrorists didn’t flee. Rather, they filmed themselves and chatted with passers-by, apparently waiting for policemen to arrive on the scene so they could attack them, too. Along the way they yelled “Allahu Akbar”–naturally–and made various threats against Great Britain on behalf of Islam. But they did not attempt to harm anyone else.

When the police arrived, the two terrorists charged them. One of them apparently had a gun, as well as the knives, so the police shot them. I believe they may have survived, unfortunately. It seems remarkable that with hundreds if not thousands of ordinary citizens passing by, the terrorists were able to strut around unmolested, boasting of their murder. Here in the U.S., it would likely be different. But in the U.K., private ownership of guns is illegal, which means that only terrorists and other criminals are armed, and normal people are helpless.

Driving home from the airport tonight, I listened to a radio account of the attack which said that radical Islam is suspected as a possible motive. Well, of course, reserve judgment: don’t take their word for it!

What has been going on in Sweden is less spectacular but cut from the same cloth. “Youths” have been rioting in Stockholm and its suburbs for the last two nights. Their excuse is the fact that Stockholm police shot a Muslim who was attacking them with a knife. This is what Stockholm has looked like for the last couple of days:

The Swedes lack any coherent language to describe the disaster that has befallen them:

Prime Minister Fredrik Reinfeldt blamed the violence on “hooliganism” and appealed for calm after the riots spread from northwestern to southern Stockholm.

“It’s important to remember that burning your neighbour’s car is not an example of freedom of speech, it’s hooliganism,” he told news agency TT.

Swedish liberals–Sweden is like Minnesota, they still have liberals there–think the police may be at fault:

Justice Minister Beatrice Ask has reportedly acknowledged “social exclusion” as “a very serious cause of many problems.” She’s promising that Stockholm’s police will forge closer ties to troubled local communities.

Social exclusion! How might that come about? Maybe if they forced all junior high school students to chant “Allahu Akbar!” in unison, Sweden could achieve social cohesion.

At one time, it was believed that the U.S. was better at assimilating immigrants than European countries. It was true, actually, for most of our history. But it isn’t true any longer. Immigrant children who attend public schools are taught multiculturalism, which is shorthand for the evils of America. We no longer make any serious attempt at assimilation; the very concept is foreign. Just imagine any public school teacher talking about “Americanism.” So today we have this equivalence:

For what it is worth, the guy on the right was considerably more lethal. But the motivation was the same: Islam. It seems rather obvious that any nation’s immigration policy should be based on the world as it actually exists, not on the world as we might like it to be. Perhaps there is a lesson here for Congressmen to consider as they contemplate the left’s latest exercise in wishful thinking.

UPDATE: Great minds think alike. I would note, however, that my point goes well beyond the issue of Islam:

Posted on by Scott Johnson in IRS, Obama Administration Scandals

On IRC section 1203

A reader with a long background of employment at the IRS writes on an aspect of the IRS scandal that hasn’t received much attention and that draws on his experience at the agency:

I’m a fan and regular reader. Thanks for your yeoman’s work on the IRS scandal. I’m also retired from a 35-year law enforcement career, 22 of which were at the IRS Criminal Investigation Division, so I have some insight into the Service and its workings (although I spent all but one year doing money laundering – narcotics, and organized crime cases – rather than tax.)

I’m quite surprised that no one has mentioned Section 1203 of the Internal Revenue Code, which mandates terminations of IRS employees who commit any of what are known in the Service as the “10 Deadly Sins.” Passed in the 19990s after the last major Congressional hearings (Revenue Reform Act of 1998), section 1203 is the neutron bomb that hangs over employees. Violations of 1203 are supposed to be non-negotiable, with termination the only result, although I believe the Commissioner can mitigate and sometimes does, usually in cases involving non-wilfull understatement of tax liability.

At any rate, you’ll notice that several of these provisions could be applicable in the present instance, notably (b) (2), (b) (3) (A), and (b) (7). If I were Ms. Lerner, Mr. Miller (who relied heavily on 6103 in his testimony), or anyone in that chain, 1203 would be a huge concern. It is for every Service employee, which is why I and others were always very cautious about taking unapproved initiative in areas that skated close to 1203. (Getting that signature, for example, even in Title 18 seizures, which probably aren’t covered. But when you’re talking “shall terminate the employment” “probably” isn’t safe enough.)

I’m not a lawyer. I don’t know if these provisions would apply in the present case, but I and every employee are acutely conscious that they exist. This is why the concept of “two rogue employees” is so far-fetched for me. They would have to be very “rogue” to take their chances with 1203. Much more “rogue” than anybody I knew at IRS.

Finally, I’d note that when I was working at IRS-CID, taking the Fifth in any proceeding was grounds for termination. I have no idea whether that’s true for other IRS employees, but a Special Agent could never take five and survive. You don’t have a constitutional right to a government job.

I’ve included section 1203 below. Took it from the NTEU website. (I detested the NTEU and CID criminal investigators are not members of that or any union.)

Best wishes,
[Name withheld by request}, Special Agent (Retired)

On its face, section 1203 requires a final administrative or judicial determination. In the current scandal, we don’t even have pending administrative or judicial proceedings. Here is section 1203:

(a) In General.–Subject to subsection (c), the Commissioner of Internal Revenue shall terminate the employment of any employee of the Internal Revenue Service if there is a final administrative or judicial determination that such employee committed any act or omission described under subsection (b) in the performance of the employee’s official duties. Such termination shall be a removal for cause on charges of misconduct.

(b) Acts or Omissions.–The acts or omissions referred to under subsection (a) are–
(1) willful failure to obtain the required approval signatures on documents authorizing the seizure of a taxpayer’s home, personal belongings, or business assets;
(2) providing a false statement under oath with respect to a material matter involving a taxpayer or taxpayer representative;
(3) with respect to a taxpayer, taxpayer representative, or other employee of the Internal Revenue Service, the violation of–
(A) any right under the Constitution of the United States; or
(B) any civil right established under–
(i) title VI or VII of the Civil Rights Act of 1964;
(ii) title IX of the Education Amendments of 1972;
(iii) the Age Discrimination in Employment Act of 1967;
(iv) the Age Discrimination Act of 1975;
(v) section 501 or 504 of the Rehabilitation Act of 1973; or
(vi) title I of the Americans with Disabilities Act of 1990;
(4) falsifying or destroying documents to conceal mistakes made by any employee with respect to a matter involving a taxpayer or taxpayer representative;
(5) assault or battery on a taxpayer, taxpayer representative, or other employee of the Internal Revenue Service, but only if there is a criminal conviction, or a final judgment by a court in a civil case, with respect to the assault or battery;
(6) violations of the Internal Revenue Code of 1986, Department of Treasury regulations, or policies of the Internal Revenue Service (including the Internal Revenue Manual) for the purpose of retaliating against, or harassing, a taxpayer, taxpayer representative, or other employee of the Internal Revenue Service;
(7) willful misuse of the provisions of section 6103 of the Internal Revenue Code of 1986 for the purpose of concealing information from a congressional inquiry;
(8) willful failure to file any return of tax required under the Internal Revenue Code of 1986 on or before the date prescribed therefore (including any extensions), unless such failure is due to reasonable cause and not to willful neglect;
(9) willful understatement of Federal tax liability, unless such understatement is due to reasonable cause and not to willful neglect; and
(10) threatening to audit a taxpayer for the purpose of extracting personal gain or benefit.

Our reader adds this note: “Believe me, every employee at IRS is acutely conscious of 1203, no matter where they work. After it was passed seizures, liens and levies dropped to almost zero. Took a long time for people to even think about sticking their necks out.”

We invite knowledgeable readers to weigh in in the comments or by email to powerlinefeedback@gmail.com.

UPDATE: Our reader writes to add yet another note:

The other thing I’d point out that is very odd about this is that IRS has been prohibited – by that same RRA98 – from using enforcement statistics to measure employee performance. Nobody’s allowed to rate you on how many cases you made, how many arrests, convictions, seizures, levies, taxes assessed, etc. Managers get in big trouble for that, but they still have to evaluate employee performance somehow, so the Service devised this whole scheme that revolves around time.

Elapsed time on a case is a huge issue. Agents get dinged if they’ve got too many hours or if a case drags on for too long. It’s all tracked in the computerized case management system, and managers get in trouble with their managers if their “inventory” (and yes, that is the term that is used to describe your case load) has overage cases. I can’t stress enough how important this is to the Service, and every employee knows it. Your performance report is going to be affected by overage cases, too many hours on a case, etc., but more importantly, the manager’s performance report is going to be affected, and her manager’s, and so on.

To have a statutory or Internal Revenue Manual deadline like 270 days to process something and to blow past without consequences is inconceivable to me. The day that thing went overage, the manager gets a report, and the employee gets asked why. The manager would keep getting reports until it was fixed, and if it wasn’t fixed soon, the SAC would be on the phone, because he or she is getting the same report, and his or her performance report (and bonuses) is on the line.

I obviously can’t speak for EO, but in CID, for an agent to have multiple overage cases like that would be impossible. This simply could not happen without dire consequences for everyone in the chain, and as a result, it never happened.

So, how do I explain a revenue agent in EO who has open cases that are 300 or even 700 days overdue? The only possible explanation is that management was okay with it, because it is absolutely impossible that they – and this includes everyone in the chain – didn’t know. Maybe they’ve got a good reason why they were okay with it, but the whole chain had to sign off on it. All the way to DC.

Posted on by Steven Hayward in Green Weenie Award

Green Weenie of the Week: Tornado Alley Edition

Yes, it does resemble something Weiner would tweet.

Now I know what you’re thinking: the obvious Green Weenie winner should be that former congresscritter who liked to tweet his big banana and who announced yesterday that he’s going to run for mayor of the Big Apple, to the audible squeals of delight from within the soundproof walls where Daily Show writers work.  And Anthony Weiner certainly qualifies for a Green Weenie, as it turns out he was in on several of the usual Democratic green energy scams.

But no; as Obama might say in another of his Nixon-channeling moods, “that would be wrong.”  Clearly this week’s Green Weenie needs to go toward rectifying my obvious goof from yesterday, where I observed that the media had practiced a rare amount of restraint and good taste by not connecting the Oklahoma tornado and climate change.  I neglected to check in where you can find the world’s largest renewable resource base of weenie material: the United States Senate.

Rhode Island Senator Sheldon Whitehouse took to the Senate floor to mention that the tornado was one more reason to blame Republicans for blocking climate legislation.   As his website says, “Each week, Senator Whitehouse gives a ‘Time to Wake Up’ speech in the Senate, compelling his colleagues to move forward on climate change.”  I guess he has no sense of irony, since these speeches surely put everyone to sleep.  And the best tweet of yesterday was the person who said–Who is crazier: conspiracy monger Alex Jones for saying the government can direct tornadoes with satellites, or Democrats who think we can prevent them with tax increases?  (Headline: “Boxer Uses Okla. Tornado to Push for Carbon Tax.”  She gets an honorable mention weenie for this.)

The interesting thing is that the senator apparently found his speech this week subsequently embarrassing and took it down from his own website; if you click the previous link that featured the speech it now says “page not found.”  [UPDATE: The speech text now appears on his website, but the video is still missing.]  I guess Whitehouse thinks that because he’s a senator, don’tyouknow, he can do the Orwell memory hole trick, but the Daily Caller, among other sites, has the video up for everyone to see.  Or you can check out this excerpt here: