DOJ Will Not Prosecute IRS's Lois Lerner for Contempt of Congress

By Susan Jones | April 2, 2015 | 8:57am EDT

IRS official Lois Lerner at a House Oversight and Government Reform Committee hearing on Capitol Hill on Wednesday, May 22, 2013. (AP Photo/Carolyn Kaster)

( - President Obama's Justice Department is refusing to prosecute Lois Lerner for contempt of Congress, a decision that "is disappointing and exhibits a disregard for the rule of law," said Rep. Jason Chaffetz (R-Utah), the chairman of the House Oversight and Government Reform Committee.  

Lerner, the IRS official accused of improperly scrutinizing conservative groups that applied for tax-exempt status, refused to answer the committee's questions after first proclaiming her innocence at hearing on May 22, 2013.

In response, the House of Representatives voted to hold Lerner in contempt of Congress, recommending that she face criminal charges.

In a letter to House Speaker John Boehner made public on Wednesday, outgoing U.S. Attorney Ronald Machen said he would not bring a criminal case to a grand jury over Lerner’s refusal to testify. Machen said DOJ lawyers "concluded that Ms. Lerner did not waive her Fifth Amendment privilege by making an opening statement on May 22, 2013, because she made only general claims of innocence."

But when Lerner made those claims of innocence in May 2013, a furious Rep. Trey Gowdy (R-S.C.) insisted that she had "just testified" by giving an opening statement. “She just waived her Fifth Amendment right to privilege, you don’t get to tell your side of the story then not be subjected to cross examination," he said. "That’s not the way it works...She ought to stand here and answer our questions.”

In his letter to Boehner, Machen also pointed to precedent going back three decades, saying that a U.S. attorney has  "traditional prosecutorial discretion not to bring a specific matter before a grand jury" when he determines that a witness is shielded from prosecution by the Constitution.

In a statement issued on Wednesday, Rep. Chaffetz said Machen "attempted to absolve Ms. Lerner of her actions by substituting his judgment for that of the full House of Representatives. It is unclear whether the Administration directed Mr. Machen not to prosecute Lois Lerner, or whether he was motivated by an ideological kinship with IRS’s leadership."

Chaffetz said the Oversight committee "will continue to pursue its ongoing investigation into the targeting of American citizens based on their political beliefs. Our goal is to ensure that the people responsible, including Lois Lerner, are held accountable, and that appropriate reforms and safeguards are put into place at the IRS to guarantee that the rights of Americans are not trampled on again by overzealous bureaucrats with political agendas."

Rep. Jim Jordan (R-Ohio), a member of the House Oversight and Government Reform Committee, accused Machen of using his power "as a political weapon" to undermine the rule of law. "This is wrong and a great example of why so many Americans distrust their government," Jordan said in a written statement.

The American Center for Law and Justice has represented dozens of the conservative groups targeted by the IRS. It says the decision not to prosecute Lerner "is troubling but not surprising."

"This latest development reflects what has become standard operating procedure for the Obama Administration in its so-called investigation of this unlawful targeting scheme by the IRS. One year ago, the Justice Department refused to appoint a special prosecutor to investigate the unconstitutional actions of Lerner and others at the IRS.

"Now, by refusing to pursue criminal contempt charges against Lerner...the Justice Department is making a mockery of our criminal justice system. This is just one more example of an administration that refuses to hold anyone accountable for a scheme that unlawfully targeted conservative groups."

The ACLJ said it's clear that the IRS is "incapable of self- correction," just as the Obama administration is "incapable of investigating its own wrongdoing."

"We will continue fighting in court to ensure that justice is served," the ACLJ said.

The ACLJ originally represented 41 conservative and pro-life groups in 22 states whose applications for tax-exempt status were targeted and delayed before the 2012 election.

Three of those organizations have now decided to end their involvement in the case because of the lengthy appeals process. Of the 38 groups remaining, 29 organizations received tax-exempt status after lengthy delays, two are still pending, and seven withdrew applications because of frustration with the IRS process.

The Associated Press quoted Lerner's attorney, William Taylor, as saying his client was gratified by the news that she will not face criminal contempt charges. "It is unfortunate that the majority party in the House put politics before a citizen's constitutional rights," Taylor was quoted as saying in a written statement.

Also See:
Koskinen Says IRS Has Eliminated Backlog of Tax-Exempt Applications

Congressman Objects to Lerner Taking 5th: ‘You Don’t Get to Tell Your Side of Story Then Not Be Subjected to Cross Examination’

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