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House Closes In on Lerner
A new Oversight Committee report lays out obstruction case against the former top IRS official.


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Eliana Johnson

The House of Representatives came one step closer Tuesday to holding former Internal Revenue Service official Lois Lerner in contempt of Congress.

As Oversight Committee chairman Darrell Issa (R., Calif.) prepares to call a committee vote on the matter, the body released a report intended to build the case that Lerner has obstructed the work of Congress by providing false and misleading information to the committee and refusing to testify before it.

If the Oversight Committee votes to hold Lerner in contempt, House speaker John Boehner could move the matter to the full Congress. His previous comments suggest he would do so. “At some point, she has to testify or she should be held in contempt,” Boehner told reporters Wednesday.

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The 141-page report makes the case that Lerner’s testimony is critical to the Oversight Committee’s investigation and that she has obstructed the panel’s work by providing it with inaccurate information. Without Lerner’s testimony, the report says, “The committee will never be able to fully understand the IRS’s actions. Lerner has unique, firsthand knowledge of how and why” the IRS decided to scrutinize conservative applicants for tax exemption.

Lerner has twice invoked her Fifth Amendment right against self-incrimination and refused to answer questions from lawmakers. The committee voted in June that she waived that right by making a voluntary opening statement at a May hearing. Lerner retired from the IRS in September.

The report charges that Lerner, the former director of the IRS’s Exempt Organizations division, misled Congress on four occasions. In a February 2012 briefing with the Oversight Committee, the report notes, she denied that the criteria for evaluating applications for tax exemption had changed. In fact, according to an inspector general’s report released last May, Lerner ordered that the criteria be broadened in June 2011. According to a colleague, she was concerned that current criteria, which included terms such as “tea party” and “patriot,” were “too pejorative.”

In all, the report paints a broad picture of Lerner’s involvement in the IRS’s effort to rein in 501(c)(4) groups, calling her the “instigator” of the agency’s malfeasance and “the singularly most relevant official” in the scandal. The events took place against the backdrop of the Supreme Court’s 2010 ruling in Citizens United v. Federal Election Commission, which allowed unlimited amounts of money from nonprofit groups and labor unions to flow into the political process. E-mails cited throughout the report indicate that Citizens United caused a lot of angst for Lerner and her colleagues in the IRS’s Exempt Organizations division. She noted in public remarks that the agency was under pressure to “fix the problem” created by the decision.

According to the report, Lerner attempted to do so by implementing a system in which applications for tax exemption were inappropriately scrutinized and by jump-starting efforts to rewrite the rules by which 501(c)(4) social-welfare groups can qualify for tax exemption. Those rules, which were introduced in November, have been the subject of controversy as groups on both the left and the right have charged that they infringe on their First Amendment rights and unduly restrict their participation in the political process.

The committee charges that Lerner’s efforts were politically motivated and intended to aid Democrats. “She led efforts to scrutinize conservative groups while working to maintain a veneer of objective enforcement,” the report says. “Lerner believed the political participation of tax-exempt organizations harmed Democratic candidates, she believed something needed to be done, and she directed action from her unit at the IRS.” Both the IRS and the Obama administration have denied this, arguing instead that agency officials are guilty only of clumsily enforcing the law.

Issa’s panel will debate whether Lerner has obstructed its work before it votes on the matter. Though a date for that hearing has yet to be set, a preview of the tension that will be on display occurred last week, when Issa called Lerner before the committee for a second time. As Issa adjourned the hearing – Lerner had refused to testify — the committee’s ranking member, Elijah Cummings, moved to make a statement. Issa had his microphone shut off.

As members and witnesses streamed out the door, Cummings, who has long said the panel’s investigation of the IRS’s targeting should come to an end, shouted over the din. “If you will sit down and allow me to ask a question! I am a member of a Congress of the United States of America! I am tired of this!” he said. “You cannot just have a one-sided investigation. It is absolutely something wrong with that and it is absolutely un-American!”

Issa on Friday apologized to Cummings for his behavior. “I could have offered to reopen the hearing and allowed him to make a second statement,” he said. “As chairman, I should have been much more sensitive to the mood of what was going on, and I take responsibility.”

— Eliana Johnson is media editor of National Review Online.



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