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Great Events from History: The 21st Century (2000-2016)

IRS Official Pleads the Fifth

by Charles E. “Chuck” MacLean

During the time of great turmoil and strife between the Democrats, who controlled the White House, and Republicans, who controlled the House of Representatives, some House leaders turned to congressional investigations as a tool for fact-finding and to keep public attention on perceived misdeeds of officials allegedly or actually allied with the Democratic Party. During this time, it came to light that some operatives in the Internal Revenue Service (“IRS”) may have begun to look critically at the tax-exempt status of entities that allied themselves with the Tea Party movement and other politically conservative groups that enjoyed tax exempt status. The House Oversight and Government Reform Committee, chaired by Rep. Darrell Issa (R-Calif.), was notably inquisitive in that regard. In hearings on the matter, one IRS official, Lois Lerner, Director of the IRS’s Exempt Organizations Unit, chose to remain silent and plead the Fifth Amendment rather than answering the Committee’s questions.

Locale: House of Representatives, Rayburn Office Building, Washington D.C.

Categories: Government and politics; Scandals; Laws and the judiciary

Key Figures

Darrell Edward Issa (b. 1953), Republican chair of the House Oversight & Government Reform Committee

Elijah Eugene Cummings (b. 1951), ranking Democratic member of the House Oversight & Government Reform Committee

Lois Gail Lerner (b. 1950), former director of the Exempt Organizations Unit of the Internal Revenue Service

William W. Taylor III, (b. c. 1942), attorney for IRS official Lois Lerner

Harold Watson “Trey” Gowdy (b. 1964), Republican member of the House Oversight and Government Reform Committee

Summary of Event

In early 2009, the conservative Tea Party was born during the presidency of Barack Obama, a member of the Democratic Party, and dedicated, in part, to reducing federal budgets and deficits. The Tea Party movement was often affiliated or associated with the Republican Party.

In early 2013, at the beginning of President Obama’s second term in office, officials of the Internal Revenue Service (IRS) disclosed that they had focused some of the IRS Exempt Organizations Unit’s efforts investigating the propriety of tax exemptions that had been granted to some entities bearing the words “Tea Party” in their organizations’ names. The Treasury Inspector General for Tax Administration issued a report on May 14, 2013, finding the IRS had targeted Tea Party-related and other politically conservative entities. Shortly thereafter, the House Oversight and Government Reform Committee (the Oversight Committee), prodded by Chair Darrell Issa (D-Calif.), began investigating this apparent IRS targeting of Tea Party-related groups.

Thereafter, the Oversight Committee commenced a series of hearings on the allegations of IRS investigations of Tea Party-related entities that had been granted tax exempt status. Intermittently, throughout the hearings, Rep. Elijah Cummings (D-Md.), the Ranking Member of the Oversight Committee, feuded with Chair Issa with Rep. Issa arguing the investigation was justified and even essential and Rep. Cummings replying that the investigation was a partisan witch hunt wasting taxpayer dollars.

In the course of the investigation, the Committee reached out to Lois Lerner, then-Director of the IRS Exempt Organizations Unit, to obtain information and set up an opportunity for Director Lerner to testify before the Oversight Committee. Director Lerner quickly had the Committee funnel all such communications through her attorney, William W. Taylor III. The communication between the Oversight Committee and Attorney Taylor was, at times, contentious. At various times, Attorney Taylor sought immunity from prosecution for his client, Lois Lerner, in exchange for her testimony before the Oversight Committee. The Oversight Committee rebuffed that proposal. Attorney Taylor also offered that if Ms. Lerner were permitted to be interviewed by Oversight Committee representatives outside of the public eye, Ms. Lerner would waive her invocation of her right to remain silent. The Oversight Committee likewise declined that offer.

On May 22, 2013, Ms. Lerner appeared pursuant to subpoena before the Oversight Committee for the first time. In response to questions, Ms. Lerner first affirmed several documents then provided a brief opening statement during which she stated, “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 any other committee. And while I would very much like to answer the Committee’s questions today, I’ve been advised by counsel to assert my constitutional right not to testify or answer questions about the subject matter of this hearing.” In subsequent hearings, Ms. Lerner consistently pled the Fifth Amendment and declined to answer any questions from the Oversight Committee. That first hearing lasted less than six minutes. Committee Member Trey Gowdy (R-S.C.) claimed that Ms. Lerner had waived her right to remain silent by making a statement claiming her innocence. The committee, however, chose not to pursue this line of attack.

The right to remain silent is guaranteed in the Fifth Amendment to the US Constitution, which states that a person shall not be “compelled in any criminal case to be a witness against himself.” Usually people do not utilize this privilege unless they have some information that they do not wish to disclose. Outside the context of a criminal trial, as in a congressional hearing, pleading the fifth does not protect a person from suspicions on the part of observers. Lerner was not a defendant in a criminal trial.

In September 2013, Ms. Lerner left government service. Thereafter, on March 5, 2014, Ms. Lerner again appeared before the Oversight Committee with her attorney. After a brief introduction from Chair Issa, Ms. Lerner’s appearance before the Oversight Committee lasted just seven minutes from swearing in until adjournment. During that brief time, under questioning solely from Chair Issa, Ms. Lerner repeatedly interposed her right to remain silent under the Fifth Amendment. Each time Ms. Lerner refused to answer, she repeated, “Under advice of my counsel, I respectfully exercise my Fifth Amendment right and decline to answer that question.”

On March 11, 2014, just six days after the March 5, 2014 continued hearing, the Oversight Committee issued its Report: Lois Lerner’s Involvement in the IRS Targeting of Tax-Exempt Organizations. Then, on May 7, 2014, the House of Representatives, on a 231–187 vote, held Ms. Lerner in Contempt of Congress for failing to respond to questions in response to the Oversight Committee subpoena. After adjournment of the hearing, when Ranking Member Cummings tried to make a statement regarding the investigations and the Committee’s procedures, Chair Issa repeatedly deactivated Cummings’s microphone saying, “Close it down.” Cries of “shame” rose from the audience. Once he was denied the right to speak on the record and Chair Issa had deactivated his microphone, Rep. Cummings directed toward Chair Issa the following pointed observation evidencing the partisan divide: “I am a member of the Congress of the United States of America. I am tired of this. We have members over here each who represent 700,000 people. You cannot just have a one-side investigation. There is absolutely something wrong with that and that is absolutely un-American…. Mr Chairman, what are you hiding?”

On March 11, 2014, the Republican dominated Oversight and Government Reform Committee issued a lengthily and detailed report providing a great deal of evidence that the IRS had indeed not been even handed when considering the tax-exempt status of the Tea Party and other conservative organizations.

Lois Lerner testifying before US House Oversight Committee in 2014 (Wikimedia Commons)

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An inquiry by the Department of Justice concluded that no IRS actions concerning tax exemptions justified criminal prosecution. In a letter to the chair of the Committee on the Judiciary, dated October 23, 2015, Assistant Attorney General Peter Kadzik wrote: “What happened is disquieting and many necessitate corrective action—but it does not warrant criminal prosecution…. Ineffective management is not a crime.” Republicans questioned the impartiality of the probe, especially after learning that of the chief investigators was a contributor to President Obama’s political campaigns.

Significance

Arising out of the birth of the fiscally-conservative Tea Party movement in 2009 and the inter-party turmoil of the time, the House Oversight and Government Reform Committee took center stage in hearings billed as efforts to ferret out government waste and misconduct. Perhaps the most high-profile set of hearings investigated allegations that the IRS had targeted conservative groups, especially those affiliated with the Tea Party movement, for special scrutiny of their tax exempt statuses. In that process, Lois Lerner’s repeated invocation of her Fifth Amendment right to remain silent and refusal to answer the Committee’s questions, rankled Committee Chair Darrell Issa and other Republicans. Ms. Lerner left government service after being held formally in contempt of Congress on a 231–187 vote. Whether she was a victim or a hero continues to be matter of debate.

Congressional Report on Lois Lerner’s Involvement in IRS Targeting of Tax-Exempt Organizations

Since Lois Lerner first publicly acknowledged the IRS’s inappropriate treatment of conservative tax-exempt applicants during an American Bar Association speech on May 10, 2013, substantial debate has ensued over the nature of the IRS misconduct. While bureaucratic bumbling played an undeniable role in some delays and inappropriate treatment, questions have persisted. Could someone with a political agenda—or under instructions—and a sophisticated understanding of the IRS cause a partisan delay for organizations seeking to promote social welfare and exercise their Constitutionally guaranteed First Amendment right to participate in the political process?

From her days at the Federal Election Commission, Lerner’s left-leaning politics were known and recognized. Even at a supposedly apolitical agency like the IRS, her views should not have been an obstacle to fair and impartial judgment that would impair her job performance. But amidst a scandal in which her agency deprived Americans of their Constitutional rights, a relevant question is whether the actions she took in her job improperly reflected her political beliefs. Congressional investigators found evidence that this occurred….

Even without her full testimony, and despite the fact that the IRS has still not turned over many of her e-mails, a political agenda to crack down on tax-exempt organizations comes into focus. 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. Compounding the egregiousness of the inappropriate actions, Lerner’s own e-mails showed recognition that she would need to be “cautious” so it would not be a “per se political project.”…

The Committee continues to offer Lois Lerner the opportunity to testify. Many questions remain, including the identities of others at the IRS and elsewhere who may have known about key events and decisions she undertook. Americans, and particularly those Americans who faced mistreatment at the hands of the IRS, deserve the full documented truth that both Lois Lerner and the IRS have withheld from them.

Staff Report, Committee on Oversight and Government Reform, US House of Representatives, 113th Congress, March 11, 2014 (Web, PDF)

Further Reading

1 

Dinan, Stephen. “Feds Clear IRS Lois Lerner of Criminal Behavior in Tea Party Scandal.” The Washington Times, October 23, 2015 (Web). Summarizes, “The IRS did mishandle tea party and conservative groups’ nonprofit applications, but their behavior didn’t break any laws.”

2 

House of Representatives. Resolution No. 574 (“H.R. 574”), 113th United States Congress, “Resolution Recommending that the House of Representatives find Lois G. Lerner, former Director, Exempt Organizations, Internal Revenue Service, in contempt of Congress for refusal to comply with a subpoena duly issued by the Committee on Oversight and Government Reform.” passed by 231–187 vote, May 7, 2014.

3 

House of Representatives, Oversight and Government Reform Committee. “Report: Lois Lerner’s Involvement in the IRS Targeting of Tax-Exempt Organizations.” U.S. House of Representatives, March 11, 2014 (Web, PDF). A detailed investigation concluding that Lerner “worked surreptitiously” to delay and put obstacles in the path of applications of conservative groups such as the Tea Party.

4 

House of Representatives, Oversight and Government Reform Committee, “Video of the Second Lois Lerner Hearing,” C-Span, March 5, 2014 (Web). 43 minutes of the hearing.

5 

Issa, Darrell. Watchdog: The Real Stories Behind the Headlines form the Congressman Who Exposed Washington’s Biggest Scandals. New York: Hatchett Book Group, 2016.

6 

Johnson, Charles G. The Truth Behind the IRS Scandals. Encounter Books, 2013. Argues that the Obama administration tried “to silence conservative groups and individuals deemed to be a political threat.”

7 

Kadzik, Peter J. “Letter to House Judiciary Committee Chair and Ranking Member.” US Department of Justice. October 23, 2015 (Web, PDF). Assistant Attorney General Kadzik is highly critical of the IRS but found no basis for a criminal prosecution.

8 

Sikulow, Jay. Undemocratic: Rogue, Reckless and Renegade: How the Government is Stealing Democracy One Agency at a Time. New York: Howard Books, 2015. Argues that Lerner and the IRS were “working from top to bottom to crush the conservative movement.”

See Also:

2001–09: The Bush Administration Has Several High-Profile Scandals; July 14, 2003–2007: Newspaper Article Mentioning Valerie Plame Results in A Major Scandal; March 12, 2008: New York Governor Eliot Spitzer Resigns in Prostitution Scandal; June 10 & 27, 2010: Former Governor Rod Blagojevich Is Found Guilty of 18 Criminal Counts.

Citation Types

Type
Format
MLA 9th
“Chuck” MacLean, Charles E. "IRS Official Pleads The Fifth." Great Events from History: The 21st Century (2000-2016), edited by Thomas Tandy Lewis, Salem Press, 2017. Salem Online, online.salempress.com/articleDetails.do?articleName=GE21A_0313.
APA 7th
“Chuck” MacLean, C. E. (2017). IRS Official Pleads the Fifth. In T. T. Lewis (Ed.), Great Events from History: The 21st Century (2000-2016). Salem Press. online.salempress.com.
CMOS 17th
“Chuck” MacLean, Charles E. "IRS Official Pleads The Fifth." Edited by Thomas Tandy Lewis. Great Events from History: The 21st Century (2000-2016). Hackensack: Salem Press, 2017. Accessed December 14, 2025. online.salempress.com.