Why She Took the Fifth

by Eliana Johnson
It is illegal to provide the government false or misleading information.

No wonder Lois Lerner took the Fifth.

Lerner, the IRS official sent on paid leave last Thursday after refusing to resign, would have had a tough time testifying before Congress about the agency’s discrimination against tea-party groups without incriminating herself in the process, an examination of her conflicting representations reveals.

Republican lawmakers, hearing complaints about the lengthy, onerous, and intrusive lists of questions sent to their constituents, have for two years been working to uncover the scandal occurring at the nation’s tax-collection agency. Lerner was a major impediment to their attempted investigation.

Her misdeeds go beyond a failure to inform Congress of the IRS’s targeting of conservative organizations, a lapse of which other agency officials, including acting IRS commissioner Steven Miller and former IRS commissioner Douglas Shulman, are also accused. 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.

If the Treasury Department inspector general’s report published in mid May is to be believed, Lerner’s communications with the House Oversight Committee have been willfully dishonest. And providing the United States government with false or misleading information carries criminal liability.

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. 

An IRS employee based in the agency’s Cincinnati office and who has experience with tax-exempt organizations tells National Review Online the questions posed to tea-party groups were “way too aggressive,” but Lerner denied that they were out of the ordinary. Defending a list of questions the Oversight Committee identified as inappropriate, she cited various legal statutes, routinely interpreting them in the broadest possible manner. Explaining her division’s request for all of a group’s corporate and meeting minutes “from inception to present,” Lerner cited the agency’s obligation to determine whether tax-exempt organizations operate exclusively for the promotion of social welfare. And in defending requests for copies of materials provided at all events a group has conducted or plans to conduct in 2012 and 2013, she pointed to a routine form that asks whether a given group publishes “pamphlets, brochures, newsletters, journals, or similar printed materials” and requests copies of each. The demands of Lerner and her employees seem designed to bury targeted groups in paperwork.

In the wake of the scandal, Lerner’s superiors have responded differently than she has. Acting IRS commissioner Steven Miller, in a hearing before the Senate Finance Committee, apologized on behalf of the IRS “for the mistakes that we made and the poor service we provided.” Former IRS commissioner Doug Shulman said at the same hearing that he was “deeply, deeply saddened by this whole series of events.” Given what we now know about Lerner’s role in misleading a congressional committee working to bring the scandal to light, is it any wonder she chose to remain silent last week? 

— Eliana Johnson is media editor of National Review Online.

Did you like this?