House report demonstrates wisdom of Lois Lerner’s Fifth Amendment plea

The House Oversight and Government Reform Committee has released a scathing report on Lois Lerner’s involvement in the Internal Revenue Service’s scrutiny of conservative advocacy groups. Based on an extensive investigation that included a review of Lerner’s email traffic, the report shows that Lerner, in response to political pressure, willfully pushed the IRS to crack down on conservative nonprofit organizations.

According to the Committee report:

[D]ocuments show that Lerner and other senior officials contemplated concerns about the “hugely influential Koch brothers,” and that Lerner advised her IRS colleagues that her unit should “do a c4 project next year” focusing on existing organizations. Lerner even showed her recognition that such an effort would approach dangerous ground and would have to be engineered as not a “per se political project.”

Underscoring a political bias against the lawful activity of such groups, Lerner referenced the political pressure on the IRS to “fix the problem” of 501(c)(4) groups engaging in political speech at an event sponsored by Duke University’s Sanford School of Public Policy.

Lerner not only proposed ways for the IRS to scrutinize groups with 501(c)(4) status, but also helped implement and manage hurdles that hindered and delayed the approval of groups applying for 501(c)(4) status. In early 2011, Lerner directed the manager of the IRS’s EO Technical Unit to subject Tea Party cases to a “multi-tier review” system. She characterized these Tea Party cases as “very dangerous,” and believed that the Chief Counsel’s office should “be in on” the review process.

Lerner was extensively involved in handling the Tea Party cases—from directing the review process to receiving periodic status updates. Other IRS employees would later testify that the level of scrutiny Lerner ordered for the Tea Party cases was unprecedented.

Defenders of the Obama IRS, such as lapdog Rep. Elijah Cummings, rely on the agency’s use of facially neutral criteria in clamping down on 501(c)(4)s. But the Committee report shows that this approach (which still resulted in far more scrutiny of conservative than liberal groups) was implemented after conservative groups had been targeted in order to cover the IRS’s tracks:

Eventually, Lerner became uncomfortable with the burgeoning number of conservative organizations facing immensely heightened scrutiny from a purportedly apolitical agency. Consistent with her past concerns that scrutiny could not be “per se political,” she ordered the implementation of a new screening method.

Without doing anything to inform applicants that they had been subject to inappropriate treatment, this sleight of hand added a level of deniability for the IRS that officials would eventually use to dismiss accusations of political motivations – she broadened the spectrum of groups that would be scrutinized going forward.

Lerner also lied to Congress about the change in approach.

When Congress asked Lerner about a shift in criteria, she flatly denied it along with allegations about disparate treatment.

The change in screening criteria did not produce a change in Lerner’s obsession with damaging the Tea Party, her willingness to circumvent the regulatory process, or her pride in performing these services for Democrats:

Even as the targeting continued, Lerner engaged in a surreptitious discussion about an “off-plan” effort to restrict the right of existing 501(c)(4) applicants to participate in the political process through new regulations made outside established protocols for disclosing new regulatory action.

E-mails obtained by the Committee show she and other seemingly like-minded IRS employees even discussed how, if an aggrieved Tea Party applicant were to file suit, the IRS might get the chance to showcase the scrutiny it had applied to conservative applicants.

IRS officials seemed to envision a potential lawsuit as an expedient vehicle for bypassing federal laws that protect the anonymity of applicants denied tax exempt status. Lerner surmised that Tea Party groups would indeed opt for litigation because, in her mind, they were “itching for a Constitutional challenge.”

(Emphasis added)

In sum:

[Lerner] was keenly aware of acute political pressure to crack down on conservative-leaning organizations. Not only did she seek to convey her agreement with this sentiment publicly, she went so far as to engage in a wholly inappropriate effort to circumvent federal prohibitions in order to publicize her efforts to crack down on a particular Tea Party applicant.

She created unprecedented roadblocks for Tea Party organizations, worked surreptitiously to advance new Obama Administration regulations that curtail the activities of existing 501(c)(4) organizations – all the while attempting to maintain an appearance that her efforts did not appear, in her own words, “per se political.”

The Fifth Amendment enables a witness to refuse to answer questions on the grounds that answering might tend to incriminate her. There can be little doubt that if Lerner were to answer Committee questions under oath, she would incriminate herself. And if she answered truthfully, she would also incriminate the administration she faithfully served.