Lois Lerner, the former IRS official at the center of the IRS controversy over the targeting of Tea Party groups, took the fifth amendment again today, causing a contentious end to the hearings. There’s been a lot of foolishness thrown around in the wake of this. I’ll point you, once again, to Ken at Popehat
I’ve been seeing a lot of comments to the effect of “why should Lois Lerner take the Fifth if she has nothing to hide?” Ironically these comments often come from people who profess to oppose expansive government power, and from people who accept the proposition that Lerner was part of wrongdoing in the first place — in other words, that there was a government conspiracy to target people with the machinery of the IRS for holding unpopular political views. Such people do not seem to grasp how their predicate assumptions answer their own question.
You take the Fifth because the government can’t be trusted. You take the Fifth because what the truth is, and what the government thinks the truth is, are two very different things. You take the Fifth because even if you didn’t do anything wrong your statements can be used as building blocks in dishonest, or malicious, or politically motivated prosecutions against you. You take the Fifth because if you answer questions truthfully the government may still decide you are lying and prosecute you for lying.
Pardon me: if you accept the proposition that the government targets organizations for IRS scrutiny because of their political views, and you still say things like “why take the Fifth if you have nothing to hide”, then you’re either an idiot or a dishonest partisan hack.
Ken also gets into whether Lerner making a statement effectively waived her fifth amendment rights. The answer is that it’s not clear: court precedent is a bit murky on the subject. As I am devoted to an expansive view of civil liberties, I would err on the side of her not having waived her fifth amendment rights. I despise government weasel efforts to get around the clear intention of our Constitutional liberties. Saying she waived her rights is the kind of government lawyer trick I despise.
Watching the proceedings, however, I was struck by a parallel to the Iran-Contra Affair and, in particular, Ollie North. North’s testimony was compelled by granting him immunity because the Democrats were absolutely determined to get Ronald Reagan. When it turned out that Reagan hadn’t done anything wrong (at least nothing that could be proven beyond Democratic ranting and raving), they prosecuted North anyway. His conviction was thrown out since it’s rare that courts allow compelled testimony to be used against someone and you really can’t revoke an immunity agreement because you didn’t get what you wanted.
For what it’s worth, I think we’re seeing a similar drama play out now. The wrong-doing — at least that which can be proven — is primary confined to Lerner’s office. The Administration might have known or suspected what was going on, but there is no provable link (and before you say it, the IRS commissioner did not meet with Obama 157 times). And let’s face it: given the cult of personality built up around Obama and the culture of corruption that is rife in his government, it’s utterly believable that government flacks were acting on their own to advance the Administration’s political interests. It wouldn’t be the first time or the tenth time the Administration has let a part of the government “go rogue” because it benefitted them.
I think the Republicans know this. If they suspected they could get Obama, they would have granted Lerner immunity a year ago to get her testimony. But if the only person that Lerner’s testimony would burn is Lerner, there’s little political value to it. So every now and then, they hold a hearing, make some noise and go home.
And that’s a pity. Apart from wasting time and money, it does little to illuminate how this happened, how it can be prevented in the future and what oversights need to be put into place. This isn’t a game. The IRS wields a scary amount of power over the individual, including the ability to confiscate assets without a conviction. Whether this business hurts the President or not is kind of a side issue. If employees of the IRS are using the formidable power of the agency to advance any political agenda — whether directed by the White House or not — this is something that can’t be stopped fast enough.
(The behavior of the Democrats and their allies, of course, is utterly contemptible. They are still trying to pretend that this isn’t a scandal or, worse, that it was justified because the Tea Party is trying to destroy America. Even the bacteria in my stomach can see that they would be screaming the heavens down if this were a Republican Administration. It’s disgusting.)
Lerner should be granted immunity. If you think this was directed by the puppet master Obama, she could get immunity so we can prove it. If you think this was a rogue office advancing a political agenda with the Administration looking the other way, she could get immunity so we can figure out how to stop it. If you think is a whole lot of nothing — you possibly being an Obama Defense Derangement Syndrome sufferer who doesn’t care about the rule of law as long as the Tea Party gets it in the ass — she could get immunity so that this goes away.
I don’t like saying that since, as I noted, I think Lerner is probably the chief villain in this saga. But I would much rather get to the truth and prevent this from happening again than drag this out for another year in the vain hope that we will, one day, be able to nail her hide to the wall.