House Recalls Lois Lerner to Testify About IRS, Potential for Immunity Deal

Fred Lucas | June 28, 2013 | 12:54pm EDT
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IRS official Lois Lerner is sworn in on Capitol Hill in Washington, Wednesday, May 22, 2013, before the House Oversight Committee hearing. (AP Photo/Carolyn Kaster)

( -- Lois Lerner, a central figure in the Internal Revenue Service/Tea Party scandal, who asserted her innocence before invoking the Fifth Amendment right against self-incrimination, will be recalled before a House panel and could potentially negotiate an immunity deal.

The House Oversight and Government Reform Committee on Friday voted along party lines for a resolution to require Lerner, the director of the exempt organizations unit of the IRS -- now on paid leave after revelations the IRS was targeting Tea Party organizations -- to return after a May 22 hearing that was never formally adjourned. Because the hearing was not formally adjourned, another subpoena will not have to be issued.

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The committee is open to an immunity deal for Lerner, but no deal has been reached yet, said Frederic Hill, spokesman for the Republicans on the House Oversight Committee.

Rep. Trey Gowdy (R-S.C.) said this was at the heart of Congress’ ability to investigate.

“I have identified nine separate specific assertions made by Lois Lerner on May 22 and that was after she asserted after she asserted her right, nine separate specific assertions, including Mr. Chairman, I have done nothing wrong, I have broken no laws, I have provided no false information to Congress, I have violated no IRS rules, I have violated no IRS regulations, and then Mr. Chairman she authenticated a document, all of this Mr. Chairman after she invoked her right to remain silent,” said Gowdy, a former state prosecutor.

Gowdy cited two U.S. Supreme Court cases, explaining that a person cannot assert his innocence on specific matters and then invoke the Fifth Amendment during cross-examination.

“The case law to this is clear,” Gowdy said. “This is not the way the Fifth Amendment works. You don’t get to tell your side of the story, and then avoid the very process we have in this system of getting at the truth, which is cross-examination.”

Rep. Gerald Connolly (D-Va.) said the committee’s actions amounted to trying to prosecute Lerner.

“If we do this today, every American citizen will be at risk, whoever comes before this committee, and it could be construed, though I’m sure that’s not the intent, that by insisting she appear by subpoena, she could claim, one observer could claim, this constitutes entrapment,” Connolly said.

“But I will point out the D.C. Bar ethics code says explicitly that when someone invokes the Fifth Amendment, it is wrong to haul them before the committee,” said Connolly. “The only purpose that can be served by that is to pillory them. That’s the verb. It invokes images of different eras in our history that the 5th Amendment was designed to prevent from happening, like the Salem witch trials where people were pilloried and worse.”

Lerner was the first to announce this past spring that the IRS had targeted conservative and Tea Party organizations applying for tax exempt status. This came just before the release of a Treasury Inspector General for Tax Administration report on May 14 was issued providing more details about the targeting.

On May 22, Lerner appeared before the committee and said, “I have not done anything wrong. I have not broken any laws. I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee.”

Earlier during Friday’s hearing, the committee defeated an amendment, proposed by Del. Eleanor Holmes Norton (D-D.C.), to the resolution requiring a separate hearing on the constitutional question of whether Lerner waived her Fifth Amendment right.

The final resolution that passed, said, “Whereas, Ms. Lerner’s self-selected, and entirely voluntary, opening statement constituted a waiver of her Fifth Amendment privilege against self-incrimination because a witness may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details.”

It continued, “Resolved, That the Committee on Oversight and Government Reform determines that the voluntary statement offered by Ms. Lerner constituted a waiver of her Fifth Amendment privilege against self-incrimination as to all questions within the subject matter of the Committee hearing that began on May 22, 2013, including questions relating to (i) Ms. Lerner’s knowledge of any targeting by the Internal Revenue Service of particular groups seeking tax-exempt status and (ii) questions relating to any facts or information that would support or refute her assertions that, in that regard, ‘she has not done anything wrong,’ ‘not broken any laws,’ ‘not violated any IRS rules or regulations,’ and/or ‘not provided false information to this or any other congressional committee.’”

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