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Why Lerner took the Fifth

Whether or not IRS Director of Exempt Organizations Lois Lerner properly asserted her Fifth Amendment right not to testify absorbed commentators after her appearance before the House Oversight Committee last week. But the question why Lerner took the Fifth has not received a comparably close look. Before asserting the Fifth Amendment, Lerner denied that she has misled Congress. Thus the controversy over whether Lerner had waived her Fifth Amendment protection.

Over at NRO, my daughter Eliana takes a deep dive into the representations previously made by Lerner to Congress in response to inquiries regarding the IRS treatment of Tea Party and conservative groups. Eliana’s research suggests that Lerner both failed to inform Congress of the IRS targeting of these groups for special treatment, but also misrepresented the targeting:

According to documents accessible on the website of the House Oversight Committee, Lerner also misled that body in its investigation; sidestepped lawmakers’ inquiries; and actively defended the intrusive questions that have been widely denounced by the inspector general, the current and former IRS commissioners, and lawmakers on both sides of the aisle.

For example:

According to Oversight Committee chairman Darrell Issa, on February 24 of last year his committee asked Lerner whether the IRS’s criteria for evaluating tax-exemption applications had changed at any point. She said that they had not. The IG report and written responses that Lerner herself provided to the committee just last week, however, indicate that she ordered specialists handling tea-party applications to change objectionable criteria including the terms “tea party,” “9/12 Project,” and “patriots,” after she was briefed on those criteria in June 2011.

When the committee expressed concern that conservative organizations were the target of “heightened scrutiny” at the IRS, Lerner on April 26, 2012, gave a detailed explanation of IRS procedures that carefully avoided the issue of targeting. She described only a class of applications that required “further development” and that were then routed to “an agent with the appropriate level of experience for the issues involved,” but failed to mention that tea-party applications by definition had been selected for such “development” — that is, the essence of the committee’s inquiry.

In May 2012 Lerner furnished a 90-page defense of the questionnaires sent to dozens of tea-party groups. In that lengthy letter, she made dubious legal claims about the IRS’s right to ask meddlesome questions, even standing by the agency’s demand for the names of donors to various groups and the amounts of their donations. “There are instances where donor information may be needed for the IRS to make a proper determination of an organization’s exempt status, such as when the application presents possible issues of inurement or private benefit,” she explained. Nevertheless she assured the committee, “The IRS takes privacy very seriously.”

Though Lerner cited an IRS form that asks for an organization’s sources of financial support as “precedent” for requesting donor names, the chief of staff for the office of the IRS commissioner told the Oversight Committee that she could not identify any other time in the agency’s history when the IRS asked a group for a complete list of donors and the corresponding amounts of their donations.

Eliana’s column links to the documents she has dug out, including the 90-page defense of the questionnaires sent to groups referred to above.

Does the IRS scandal end with Lerner? It seems highly unlikely. Following up on Susan Ferrechio’s report last week, Vince Coglianese cites an evocative fact: “Publicly released records show that embattled former IRS Commissioner Douglas Shulman visited the White House at least 157 times during the Obama administration, more recorded visits than even the most trusted members of the president’s Cabinet.”

Why all those trips? Shulman said he visited the White House to discuss budgeting, the implementation of ObamaCare and to attend the Easter Egg roll. Is the Easter Egg roll the tell?

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