17 MINs agoOpinionWhy Did Lois Lerner Take the Fifth?
Perhaps to protect herself from Obama.
Perhaps to protect herself from Obama.
By James Taranto
Lois Lerner swears.
Associated Press
Among the criteria by which the Internal Revenue Service selected groups in for its political targeting program in 2012 was “educating on the constitution and bill of rights” (lowercase in original), according to the Inspector General’s Report. Lois Lerner, who directs the office at the center of that effort, has received her own education in the Constitution.
This morning Lerner made a brief appearance before the House Oversight and Government Reform Committee. Here’s her testimony:
Members of this committee have accused me of providing false information when I responded to questions about the IRS processing of applications for tax exemption. I have not done anything wrong, I have not broken any laws, I have not violated any IRS rules and regulations, and I have not provided false information to this or any other congressional committee.
And while I would very much like to answer the committee’s questions today, I’ve been advised by my counsel to assert my constitutional right not to testify or answer questions related to the subject matter of this hearing. After very careful consideration, I have decided to follow my counsel’s advice and not testify or answer any of the questions today.
Because I’m asserting my right not to testify, I know that some people will assume that I have done something wrong. I have not. One of the basic functions of the Fifth Amendment is to protect innocent individuals, and that is the protection I am invoking today.
By the time this is all over, one hopes she’ll understand the First Amendment too.
Lerner is quite right that one cannot read her refusal to testify as an admission of criminal wrongdoing. Blogger Doug Mataconis quotes the U.S. Supreme Court’s 1956 decision in
We must condemn the practice of imputing a sinister meaning to the exercise of a person’s constitutional right under the Fifth Amendment. The right of an accused person to refuse to testify, which had been in England merely a rule of evidence, was so important to our forefathers that they raised it to the dignity of a constitutional enactment, and it has been recognized as “one of the most valuable prerogatives of the citizen.”
Josh Marshall, proprietor of TalkingPointsMemo.com, concedes that Lerner “has every right” to invoke the Fifth Amendment “and may be wise to do so. But that’s a decision that simply is not consistent with her remaining in her job. Whether or not she should be fired for whatever she did in the scandal itself, deciding to take the fifth means she needs to be removed from her position.”
Well, here’s a constitutional lesson for Marshall. The Fifth Amendment protects against more than just criminal convictions. struck down a provision of the New York City Charter that provided: “Whenever an employee of the City utilizes the privilege against self-incrimination to avoid answering a question relating to his official conduct, his term or tenure of office or employment shall terminate and such office or employment shall be vacant, and he shall not be eligible to election or appointment to any office or employment under the city or any agency.”
Marshall writes that he “was chatting with people yesterday” who said civil service rules may make it “extremely difficult or even impossible” to fire Lerner. Doing so she exercised her rights under the Fifth Amendment would be unconstitutional.
Now, who were these “people” with whom Marshall was “chatting” yesterday? Might they have had an interest in the case? The Weekly Standard takes note of a tweet from NPR’s Ari Shapiro at 3:25 ET yesterday afternoon: “Spotted: @joshtpm @CapehartJ @ezraklein & other lefty columnists headed into the West Wing as a group. POTUS coffee? Carney meeting? Anyone?”
Those Twitter IDs belong, respectively, to Marshall, Jonathan Capehart of the Washington Post and Journolist founder Ezra Klein, also of the Post. Marshall’s post calling for Lerner’s defenestration appeared at 10:15 this morning. Exactly half an hour, Klein had a post along similar lines: “Yes, Heads Should Roll at the IRS.” Capehart is busy with another topic, “Gay Inclusion.” But the similarity between Marshall’s and Klein’s posts suggests that they may be acting in the capacity of unofficial White House spokesmen.
The White House seems to have an inkling it can’t fire Lerner: Klein as well as Marshall emphasized the stringency of civil-service rules. But encouraging the public to draw adverse conclusions from her assertion of her rights under the Fifth Amendment would have a similar effect of turning her into a scapegoat.
The American people have a right to know both how deep and how high the corruption of our government runs. The White House has an interest in minimizing the scandal, and surely that is Obama’s objective if he is trying to throw Lerner under the bus. Let’s reserve judgment on her and make sure not to let off the hook the man whose re-election the IRS’s abuse of power helped to advance.
Who Are the Watchdogs Guarding?
In a Daily Beast piece on the Obama administration’s disrespect for the traditions governing federal law-enforcement agencies’ dealings with the press, Nick Gillispie describes the Obama-era media as “more prone to being lapdogs than watchdogs.” That has a nice ring to it, but it seems to us the metaphor is a little off. The pro-Obama media are acting like watchdogs–but watchdogs whose master is Obama rather than the public.
A good example is the continuing example to scare Republicans away from the Obama scandals. Here’s an example from Greg Sargent, another Washington Post Journolister:
A few of us on the left have been arguing that the current scandal-mania gripping the GOP risks bringing about a rerun of 1998, when the frenzy amid the Monica Lewinsky revelations led the GOP to overreach, resulting in backlash.
If Sargent’s yapping doesn’t convince you, he’s got a big dog to back him up: “Now we have a longtime respected nonpartisan observer, Charlie Cook, arguing that this possibility is very real.” Here’s National Journal’s Cook:
The simple fact is that although the Republican sharks are circling, at least so far, there isn’t a trace of blood in the water. A new CNN/ORC survey of 923 Americans this past Friday and Saturday, May 17-18, pegged Obama’s job-approval rating at 53 percent, up a statistically insignificant 2 points since their last poll, April 5-7, which was taken before the Benghazi, IRS, and AP-wiretap stories came to dominate the news and congressional hearing rooms. His disapproval rating was down 2 points since that last survey.
In Gallup’s tracking poll, Obama’s average job-approval rating so far this year is 50 percent. For this past week, May 13-19, his average was 49 percent, the same as the week before. The most recent three-day moving average, through Sunday, May 19, was also 49 percent. Over the past two weeks, even as these three stories/scandals have dominated the news, they have had precisely zero effect on the president’s job-approval numbers. His ratings are still bouncing around in the same narrow range they have been for weeks. . . .
Republicans and conservatives who are so consumed by these “scandals” should ask themselves why, despite wall-to-wall media attention and the constant focus inside the Beltway–some are even talking about grounds for impeachment–Obama’s job-approval needle hasn’t moved.
For one thing, it’s still early. The game’s only in the top of the Fifth (sorry Lois, couldn’t resist). If, as Sargent and Cook seem to wish, Republicans were so weak as to be dissuaded from doing their duty by a handful of dubious poll numbers, it’s unlikely they’d win many elections and certain they wouldn’t deserve to.
It’s true that some on the right have expressed genuine concerns that are in line with Sargent and Cook’s feigned ones. Ramesh Ponnuru makes this good point:
If the evidence leads to the conclusion that the IRS bureaucracy acted on its own, that is scandal enough; it would serve to strengthen the public’s conservative instincts about the dangers of trusting the government, whoever happens to be in the Oval Office. Republicans shouldn’t be obsessed with Obama, who won’t be on the ballot again, and shouldn’t make a legitimate inquiry into potential abuses of power appear to be–or, worse, actually be–part of a personal vendetta.
As we’ve argued, the scandal is actually much worse if the IRS was acting without guidance from the White House. A corrupt administration can be ousted through resignation or impeachment, as in 1974. If the IRS and other permanent institutions of government are fundamentally corrupt, reforming them would be much more complicated and effortful.
Howard Fineman of the Puffington Host dissents from his fellow liberals:
So far, voters don’t seem to be abandoning President Barack Obama over controversies gripping the Beltway world. But White House aides are tempting fate with their reluctant, piecemeal and contradictory disclosures of what they knew and when they knew it, especially about a report on the Internal Revenue Service’s 18-month effort to target tea party and other conservative groups for special scrutiny.
The aides either have forgetten [sic] or are unable to implement the basic lesson of scandal control in Washington: Get the full story out–all of it–as fast as you can before your critics accuse you of a cover-up or worse.
That advice doesn’t always apply. If Bill Clinton had acknowledged his affair with Monica Lewinsky in January 1998, the shock might very well have left him without political support, compelling him to resign. His months of lying and evading–including in sworn testimony–ended up getting him impeached, but it didn’t end his term in office. By the time he admitted the truth, his supporters had reconciled themselves to it, and to supporting him in spite of it.
Whether getting the full story out is the most advantageous course for Obama depends a great deal on what the full story is. If there is a White House link to the IRS abuses, Obama has every reason to conceal the truth for as long as possible. One suspects his watchdogs, trying to protect their master by scaring Republicans away, are at least fearful that is the case. But maybe they’re just being reflexively protective and the White House really has nothing to hide. In that case, this would be a classic example of the Taranto Principle.
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