Invoking The Fifth Amendment Is Not Evidence Of Wrongdoing

A top IRS official will reportedly invoke her 5th Amendment rights rather than testify before Congress tomorrow.

Rather than testifying tomorrow regarding the ongoing IRS scandal, at least one of the officials who had knowledge of what was going on will be invoking their rights under the Fifth Amendment:

Embattled IRS official Lois Lerner will invoke her Fifth Amendment right not to incriminate herself when she appears before the House Oversight Committee on Wednesday.

In a letter to Oversight Chairman Darrell Issa (R-Calif.), Lerner’s attorney William W. Taylor III cites the Justice Department’s criminal investigation into the issue of whether the IRS singled out tea party and other conservative groups for extra scrutiny.

Lerner will be the first person involved with the IRS scandal to publicly invoke the Fifth Amendment.

“Just when you think things can’t get any stranger around here, they take a twist,” Sen. John Cornyn (R-Texas) told POLITICO, adding, “this is a very serious matter.”

Taylor’s letter requests that Lerner be excused from testifying, but Issa has issued a subpoena to compel her appearance.

“Requiring her to appear at the hearing merely to assert her Fifth Amendment privilege would have no purpose other than to embarrass or burden her,” Taylor wrote.

Lerner oversaw the IRS nonprofit department and Issa has accused her of lying to Congress about her knowledge of the investigation into whether the agency targeted conservative groups.

Sen. Orrin Hatch said Lerner’s decision shows she is “afraid” to face Congress and account for her actions.

I’m seeing similar reactions from people on the right on Twitter and Facebook, as well as plenty of people claiming that this is somehow going to be a political embarrassment for the Obama Administration. In reality, of course, there’s nothing surprising about Lerner’s decision here.

Before he testified before Congress last week, Attorney General Eric Holder announced that the Federal Bureau of Investigation and had opened a criminal investigation into the matters that were going on in the IRS’s Cincinnati office, and elsewhere, between 2010 and 2012. Unlike the outgoing Acting IRS Commissioner who testified last week, Lerner was close enough to what was going on to, potentially, be a target of that investigation. Additionally, Lerner had apparently testified before Congress regarding claims of targeting by Tea Party groups long before this story ever broke, and some members of Congress have suggested that she committed perjury when she did so. Finally, any testimony she gives now that conflicts even in the slightest from what she testified to before could subject her to claims of perjury. Lying to Congress is a crime that people do get charged with, just ask Roger Clemens, who went through two trials before being acquitted on perjury charges last year. Given all of this, and the lack of any testimonial immunity grant from Congress, it’s obvious that Lerner’s attorney would have strongly recommended that she invoke her Fifth Amendment rights.

This isn’t new, of course. Last year, when Congress was investigating the collapse of MF Global, led by former Democratic Senator and Governor Jon Corzine, several former MF Global executives invoked their rights under the Fifth Amendment. Given that the company was the subject of multiple negotiations related to its collapse, this wasn’t a surprise. However, since we were in the middle of the political season, it quickly became the subject of a Republican National Committee ad. As I said at the time, there was something rather ironic about a political party that claims to respect the Constitution using the fact that someone exercised their rights under the Constitution as a political weapon:

I’ve got to say that I find something particularly offensive about this ad and the suggestion it makes that there’s something wrong with asserting one’s right to remain silent. For a party that claims to respect the Constitution, it strikes me as hypocritical to then turn around and insinuate, as this ad clearly does, that there’s something wrong with someone asserting their Constitutional rights. If you truly respect the Constitution, that means respecting all of the Constitution including the part that allows someone to refuse to answer questions under oath from a Congressional Committee that, in addition to having an oversight role, also clearly has a political agenda. Sadly, it’s the kind of implication that is likely to play well in the hustings because one generally finds the public reaction to the privilege against self-incrimination to end with the thought “well, if they didn’t have anything to hide they wouldn’t plead the Fifth.”

The Supreme Court answered that question back in 1956 in a case called Slochower v . Board of Higher Education of New York City:

At the outset, we must condemn the practice of imputing a sinister meaning to the exercise of a person’s constitutional right under the Fifth Amendment. The right of an accused person to refuse to testify, which had been in England merely a rule of evidence, was so important to our forefathers that they raised it to the dignity of a constitutional enactment, and it has been recognized as “one of the most valuable prerogatives of the citizen.” Brown v. Walker, 161 U.S. 591, 610. We have reaffirmed our faith in this principle recently in Quinn v. United States, 349 U.S. 155. In Ullmann v. United States, 350 U.S. 422, decided last month, we scored the assumption that those who claim this privilege are either criminals or perjurers. The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury. As we pointed out in Ullmann, a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise migh be ensnared by ambiguous circumstances. See Griswold, The Fifth Amendment Today (1955).

As things stand right now, I have no idea what Ms. Lerner’s culpability in this matter might be, or indeed whether there were any crimes actually committed at all. That’s what an investigation is for. At the same time, it is Congress’s job to find out what happened, and why, both as part of its role as the oversight body of Executive agencies like the IRS and to determine whether changes to the law to prevent this from happening again might be necessary. That process will go forward. At the same time, though, people like Ms. Lerner are entitled to the same Constitutional protections that everyone else is, and it’s improper to assume wrongdoing just because they choose to exercise those rights.

FILED UNDER: Congress, Law and the Courts, US Politics, , , , , , , , , , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Gold Star for Robot Boy says:

    Cafeteria Constitutionalists.

  2. Phillip says:

    Who in their right mind wants to be questioned under oath by people who admire McCarthy?

  3. CSK says:

    Juries don’t react well to defendants who invoke the Fifth. At Patty Hearst’s trial for bank robbery, she ended up have to do so 42 times. The jury, which had started out inclined to believe she was innocent, ended up convicting her.

  4. APL says:

    I believe that we need an independent council to investigate all
    of these actions of the IRS

  5. JKB says:

    All this means that having been on the side doing harm when the bureaucracy turns against a citizen, Ms. Lerner is fully aware of the dangers and sensed the bureaucracy is turning against her.

  6. Just 'nutha ig'rant cracker says:

    @JKB: While you are certainly on point on the notion of the bureaucracy turning on someone, I’m not sure why you presume that she “…[was] on the side of doing wrong” as per your opening. Other than ODS, that is.

  7. JKB says:

    @Just ‘nutha ig’rant cracker: I’m not sure why you presume that she “…[was] on the side of doing wrong”

    It may not be illegal but what they did was wrong. The bureaucracy is big on using every legal trick they can to screw citizens.

  8. legion says:

    Considering that no less a figure than the Speaker of the House has already publicly demanded to know “who’s going to jail for this”, she really doesn’t have any alternative to, in effect, tell Congress to go piss up a rope.

  9. Stonetools says:

    Well said, Doug.

    The Republican investigation of the IRS is turning into a witch hunt, frankly. Everyone seems to be looking for a scapegoat, so I understand her protecting herself.

    And I also think that the current theme pushed by the right wing of the Tea Party groups being sweet little lambs and theIRS being the big bad wolf will turn out to be bullsh!t.

  10. PD Shaw says:

    What does it mean for Congressional oversight if executive officials decline to testify?

    At the minimum, she needs to leave because for whatever reason she is no longer competent to hold her job.

  11. Liberal Capitalist says:


    It may not be illegal but what they did was wrong. The bureaucracy is big on using every legal trick they can to screw citizens.


    I am SO f’in tired of folks thinking that government is a conspiracy.

    Inefficient? Sure. Overly redundant? Probably.

    But a RICO conspiracy? not a freakin chance.

    What ridiculousness.

    ESPECIALLY when we hear today that Apple has gone through all sorts of exercises to intentionally avoid paying BILLIONS to the USA in taxes.

    … that’s BILLIONS, stolen from you, me and all our kids.

    And that is just ONE corporation.

    It is so common, corporations (like the one that I used to work for) petition for “tax holidays” to bring trillions back onshore without penalty for doing what they are doing now.

    We are absolutely outraged against the wrong crooks.

  12. Jenos Idanian says:

    When a public official chooses to assert their Fifth Amendment rights when asked about how they carried out their public duties, that — morally, if not legally — should be grounds for immediate dismissal. Period.

    They were acting in our names, while taking our money. We are their bosses. If they can’t explain how they carried out their jobs, then we should fire them immediately.

  13. wr says:

    @Jenos Idanian: “They were acting in our names, while taking our money. We are their bosses”

    Being a boss brings with it not only priveleges but responsibility. If you ever get out from behind that Slurpee machine, you might have a chance to learn that it’s not all about swinging your dick around and proving that because you’re “the boss” you’ve got all the power.

  14. wr says:

    @Jenos Idanian: “They were acting in our names, while taking our money. We are their bosses. If they can’t explain how they carried out their jobs, then we should fire them immediately. ”

    And by the way, there are roughly 300 million of us. How do we decide how we function as a boss. Should we all have a meeting and decide who to fire? Or should the entire nation just follow along as some unhappy llittle bully decides to prove he actually can have an impact on the world by making someone he’s never met suffer?

  15. wr says:

    @JKB: “The bureaucracy is big on using every legal trick they can to screw citizens. ”

    Do you get splinters in your butt from riding that hobby horse all day and all night?

  16. anjin-san says:

    What does it mean for Congressional oversight if executive officials decline to testify?

    What does it mean for Congressional oversight if serial partisan witch hunts make it difficult/impossible to conduct legitimate investigations?

  17. legion says:

    @PD Shaw:
    @Jenos Idanian:
    You both seem to be simultaneously confusing Congress with a) a court of law and b) her supervisor. With the exception of impeachment (whic Lerner is obviously not eligible for), Congress cannot simply declare someone guilty of a crime. Likewise, except perhaps in the case of a Congressionally approved appointee, they can also not declare her unfit for her job. If she was doing her job improperly or incompetently, then it’s up to her boss to fire her – not Congress, and not you or I. If she _was_ working in the way she was expected to, then your beef is with her superiors, and taking her “scalp” will serve no purpose whatsoever.

  18. legion says:

    @anjin-san: Hear, hear.

  19. Dave D says:

    Republicans have never let something as small as the constitution stand in the way of being strict constitutionalists. It is not a living doctrine, therefore interpret the fifth as written and stfu.

  20. GeoffBr says:

    Invoking the 5th Amendment is not legally admissable evidence of wrongdoing, but it is certainly evidence of wrongdoing. The entire language – where someone declines to answer a question “on the grounds I may incriminate myself” – suggests as much.

    While the court cases cited note that such invocations can’t be used against someone in a criminal trial, I’m not sure why a layperson cannot draw the obvious conclusions. (In fact, my understanding is that, should someone in a civil case take the 5th, the judge can indeed infer bad behavior.)

    I should add that I have no idea if Lerner is actually guilty of a crime or simply taking this step as a prophylactic measure. But I don’t see why we should take the 5th Amendment as a moral precept rather than a legal construct.

  21. BackwardsBoy says:

    Invoking the Fifth isn’t an admission of guilt? Really? It’s purpose is to prevent self-incrimination, which is proof of illegality.

    Of course, you have no problem invoking the 5th when a Democrat does it.

    Your toe-hold on legal theory is slipping…

  22. Steve V says:

    It may be inadmissible to show guilt in court, but is there any greater political catnip than a witness before congress repeatedly invoking the Fifth Amendment? I expect the committee to really milk this.

  23. Jenos Idanian says:

    @wr: @anjin-san: Gosh, you can’t tell the knee-jerk contrarians, the lapdog leftists, and the liberal fascists without a scorecard.

    “The answer is ‘Congressional oversight, Checks and Balances, and Public Servant.”

    “What are three things that liberals don’t grasp when they hold the reins of power, Alex?”


    But don’t worry, dopes. The White House lit up the Rat Signal, the Juicebox Mafia strapped on their kneepads, and rushed to get the latest talking points to parrot. I’m sure you’ll get what spin to use in short order.

  24. Tyrell says:

    A real problem is that Obama Care is going to have some of the administration done by the IRS!! Can you imagine the disaster ? A lot of people did not realize this until this latest scandal broke out, probably even some of the people in congress who voted for it. Of couse they probably still have not read the 900+ pages of the Obama Care bill. The IRS does not need to be be running anything. Just imagine the abuses when they get access to everyone’s medical records!
    Get the book “How To Survive Obama Care”.

  25. superdestroyer says:

    Can a civil servant really take the Fifth Amendment to reufse to testify about what they were doing while being paid by the taxpayers. Corzine and the others were working for a private company and the owners could opt to fire them and sue them.

    What are the citizens of the U.S. suppose to do when the civil servants refuse to answer the questions of Congress. If they refuse to answer questions about what they were doing on the public payroll, they should be forced to immediately resign. The taxpayers and voters should not have to tolerate any civil servant who refuses to answer Congress’s questions about their own work.

  26. Caj says:

    Republicans I believe have their own constitution! It certainly isn’t the one we all know about. They bang on about in nearly everything they talk about. But as usual pick and choose parts of it that they like or suits their agenda. Oh these constitutional scholars make me laugh, they really do!

  27. PD Shaw says:

    @legion: You don’t seem to understand what Congressional oversight means. According to the Congressional Research Service, there are several purposes for Congressional oversight:

    1. Ensure Executive Compliance with Legislative Intent
    2. Improve the Efficiency, Effectiveness, and Economy of Governmental Operations
    3. Evaluate Program Performance
    4. Prevent Executive Encroachment on Legislative Prerogatives and Powers
    5. Investigate Alleged Instances of Poor Administration, Arbitrary and Capricious Behavior, Abuse, Waste, Dishonesty, and Fraud
    6. Assess Agency or Officials’ Ability to Manage and Carry out Program Objectives
    7. Review and Determine Federal Financial Priorities
    8. Ensure That Executive Policies Reflect the Public Interest
    9. Protect Individual Rights and Liberties
    10. Other Specific Purposes

    If she cannot explain to Congress what happened with this program, at the very minimum to point out problems with Congressional mandates, she should leave.

  28. Just Me says:

    Probably good legal advice at this point to take the 5th.

    I think a lay person can infer guilt or at least some knowledge of what happened and a blind eye being turned given the refusal to give testimony.

    I would like to see an independent investigator because frankly I don’t trust Holder to not hunt down a couple of low level people in order to protect higher level people.

    I still don’t think Obama had anything to do with what happened at the IRS, but I don’t buy for a minute that it was a couple of low level employees who went rogue. My gut makes me think this came down from management level.

  29. Tyrell says:

    @superdestroyer: What is that saying about absolute power? Something about corrupting absolutely? The power of the government is concentrated mainly in the agencies and bureacracies. They sre given wide ranging authority over businesses and individuals. Anytime an agency has the power to grant permits, licenses, right of ways, etc. they have the power to tax and control. This is done with little or no oversight from Washington or state governments . These agencies are created and then left to run on their own with no accountability or controls. And where are the ethics ?

  30. Sam Malone says:

    Congress has known about this for a long time.
    Now they are on a political witch-hunt.
    Issa has one goal…make the administration look bad…at any cost.
    IMPEACHMENT!!! Chaffetz (R-Utah) has a boner over it.
    She is smart not to testify in front of these a$$-hats.
    They are court-jesters…not a court.

  31. legion says:

    @PD Shaw: You, and those points, presume that Congress is an inherently objective investigatory body, at least in this realm. I think Speaker Boehner’s comments quite definitively show that is not so – any investigator or judge who said such things would have to recuse themselves or be removed, but there is no such defense against a biased Congress except to refuse to play their game. To illustrate,

    What are the citizens of the U.S. suppose to do when the civil servants refuse to answer the questions of Congress.

    What are the citizens of the US supposed to do when the Congress refuses to perform the work of governing? When they actively impede economic recovery so their paymasters can reap more profits? When they commit active treason by manufacturing evidence & lying to the press in an attempt to establish a false pretense for impeachment?

    Neither of you have any respect for Lerner… frankly, I don’t either – she strikes me as a hack. But treating Congress with the lack of respect (and cooperation) it deserves is, quite simply, her only rational option.

  32. Ben says:

    @PD Shaw:
    @Jenos Idanian:

    You are all missing something here. She’s isn’t invoking the 5th just to avoid disclosing things that could cost her her job, or make Obama look bad. She is being directly targeted to try to get her to incriminate herself. The Republicans have already said that they want people to go to jail over this. The AG has already announced a criminal investigation. Any lawyer worth anything would tell her to do exactly this in these circumstances. There’s basically no other useful course. I would do the exact same thing, regardless of whether I had actually done anything wrong. They are out to hang someone, and I’m certainly as hell not going to help them make it me that’s hanging.

  33. Blue Galangal says:


    Bush orders Miers to defy House subpoena
    Former White House counsel will not show up for testimony Thursday

  34. John D'Geek says:

    As much as I hate defending the IRS in this matter, I must say this: you obviously have never “worked for Congress*”.

    Once Congress gets to this point, they couldn’t care less about “the truth” — they just want heads to roll, preferably with jail time. They will invent stuff if they have to — trick you into perjury, what ever.

    Screw that.

    I would be claiming the fifth right now — and I have nothing whatsoever to do with that branch of government. They are in “witch hunt” mode — and even the slightest mistake on my part would mean jail time. Even though it’s not deserved

    * — You work for whomever signs your paycheck. Who signs the paycheck? Congress, since they are the ones that budget your salary. All federal employees, therefore, work for congress. Which is why things are so screwed up.

    [quick note to moderators: This e-mail address is also vaild for me.]

  35. Scooby says:

    Substitute the words ‘Occupy Wallstreet’ for ‘Tea Party’ in this and I daresay the left would be rabid at this point.

    As Issa said, put partisan politics aside people. We are talking about grievous transgressions against our liberties.

  36. Sam Malone says:

    @ Scooby…
    But Issa doesn’t care about transgressions against our liberties.
    Did he investigate Bush for totruring people?
    He’s on a partisan witch-hunt.
    The IRS f’ed up and there should be repercussions…indeed.
    But that’s not Issa’s goal here.

  37. Torkild says:

    We hire managers in government to do a job. Lois Lerner refused to do that job this morning. One of her duties is to report anything that is broken to congress so it can be fixed. She refused.

    Her 5th amendment rights apply to prosecution. Refusing to do her job applies to her continued employment.

    Fire the woman. Remove her benefits retroactively for breach of contract.

    She has the right not to testify against her self. She does not have the right to refuse to do her job without consequence. If we don’t know what broke we can’t fix it.

  38. Scott says:

    @Ben: Agree totally. All those criticizing need to put yourself in Lerner shoes. Would you do the noble thing and testify, knowing in your heart, that you are totally innocent? Or would you not take that chance when powerful people are targeting you, fairly or unfairly? I would not. As someone once told me: “The law is not about justice, it is about the law”.

  39. wr says:

    @Jenos Idanian: Wow. That’s the best you can do? This incoherent, inane babble of gibberish? I guess these scandals are running out of gas faster than anyone would have predicted.

    Quick, bring up Fast and Furious — that always works!


  40. anjin-san says:

    It’s noteworthy that the right wing attack gerbils are in such a lather about a US citizen exercising a constitutional right. Yes folks, these patriots are the true torch bearers for the founding fathers! Don’t they tell us so about once every 15 seconds?

    The government cannot force citizens to testify against themselves. By allowing people to refuse to answer questions that might make them seem guilty, the Fifth Amendment resolves the conflict between defending oneself and telling the truth.

    Meanwhile, back at Issa’s lair.

    Invoke your rights, lose your job. It’s the GOP.

  41. wr says:

    @Scooby: “As Issa said, put partisan politics aside people. We are talking about grievous transgressions against our liberties. ”

    Oh, my God yes!!!! Some patriots were required to answer a couple of extra questions when they applied for tax free status!!!! It’s just like the Holocaust, only worse, because these were white people suffering!!!!!!

  42. One problem is that you’re conflating pleading the 5th in a court of law with pleading the 5th as a government employee testifying to Congress. While similar, not exactly the same. And, really, the 5th is more about not having to self-incriminate oneself, not about people thinking guilt or innocence out in the wide world. People cannot be found legally guilty by taking the 5th. But, everyone knows that someone is hiding something when they do.

  43. JKB says:

    Look, it might have been deliberate or it might not have been but once Holder opened the criminal investigation, it is wise to lawyer up and shut up.

    Although, she apparently wanted to declare on the stand her innocence without being cross examined. That might turn out to be a fatal error. When you shut up, you shut completely up.

    In police internal investigations, a officer/employee cannot refuse to answer an administrative investigation or they can be fired. However, should the investigators find something criminal, the administrative investigation is suspended and new investigators (theoretically untainted by the forced answers of the administrative investigation) come it to do the criminal investigation. Once they are done, along with people not having their 5th amendment rights impeded, the administrative investigation resumes.

    Now, obviously here, we have Congress, ostensively trying to conduct an administrative inquiry, while DOJ has started the criminal (and confidential while ongoing) investigation.

    Many Senators and Congressmembers, many with their brilliant law educations, helped create this situation by calling for a criminal investigation even when there was no apparent “illegal” activity. I’m sure they did it by accident rather than to shift the focus off the corrupt and threatening lawful activities of the IRS and the rest of the bureaucracy against the American people. Although one should not attribute complex conspiracy to what can be explained by stupidity and self-interest.

  44. Dave says:

    Did you people who are complaining about lack of oversight fully read Doug’s post? There is an active Justice Dept. investigation into criminal wrong doing and the FBI has just opened a separate investigation as well. Some commenters seem to be conveniently ignoring those facts. As Doug wrote, if Lerner testified and gave an answer that simply appeared to conflict with other testimony due to confusion or poor questioning she might very well prolong the criminal investigations as well as well as that of Congress, as well as opening herself up to possible perjury charges. Of course I have a feeling that is exactly what a number of complainers here want. If, however, you want the truth, let the criminal investigations finish and then call her before an investigating Congressional panel. Or, give her immunity in testifying before Congress. Somehow I don’t think that’s what you really want.

  45. PD Shaw says:

    @Ben: I don’t care whether she pleads the Fifth, but her job responsibilities include facilitating Congressional oversight.

    This is how the system works: Congress gives broad, often discretionary, authority to agencies, at the front-end, while monitoring agency implementation of that discretion on an ongoing basis to make sure that things are working properly. For whatever reason, she cannot contribute to that key part of the system with respect to a program she oversaw.

  46. anjin-san says:

    @PD Shaw

    her job responsibilities include facilitating Congressional oversight.

    Yes, and the house’s job responsibilities include governing, something they have pretty much turned their backs on.

  47. Jenos Idanian #13 says:

    This woman was asked by the people who pay her salary just how she carried out her duties for which she was paid. If she will not answer just how she performed her job, then she needs to go.

    If she will not resign, she should be fired for cause.

    If she is not fired, then her superiors are assuming full responsibility for her actions and should likewise be held accountable.

    If she broke the law on her own initiative, then she should plead the 5th.

    If she broke the law on directions from her superiors, she should state so.

    If she didn’t break any laws, then she should say so.

    There was wrongdoing here. That much is established — the IRS has admitted so and publicly apologized. This needs to be properly investigated. And, despite what the New York Times and a lot of the usual idiots here believe, “it would help the Republicans” is NOT a valid defense for refusing to cooperate with a legal investigation.

  48. Scott says:

    @Jenos Idanian #13:

    If she broke the law on her own initiative, then she should plead the 5th.

    Here’s the problem with that statement. None of us (except for lawyers) know what the law is. I bet that all of us break some law everyday and if someone wanted to get us, they could.

    Like I said previously, if a criminal investigation has been launched, I would hunker down and plead the 5th because I wouldn’t know if I broke a law or not. The ones to blame are those who talked so loosely to begin with.

    Of course, if Congress really wanted to get to the bottom of the issue and exercised their oversight responsibilities, they could issue immunity.

  49. Ben says:

    @William Teach:

    People cannot be found legally guilty by taking the 5th. But, everyone knows that someone is hiding something when they do.

    That is a horribly corrosive view. I can think of many very good reasons why someone who is completely innocent of any wrongdoing would do exactly what she’s doing. And it’s exactly what I would do. And no, there is no difference between pleading the 5th in a court of law vs doing it before Congress. In both cases you are under oath, and in both cases, anything you say could very well end up being the basis for criminal charges against you.

    @PD Shaw:

    I don’t care whether she pleads the Fifth, but her job responsibilities include facilitating Congressional oversight.

    Except one of the stated goals of said oversight is to bring criminal charges against people involved. Congress isn’t just analogous to her Boss. Congress is also analogous to the police (because any false statements to them is itself a crime). And saying ANYthing to the police when it’s become clear that they suspect you of wrongdoing is always stupid.

  50. Sam Malone says:

    Turns out Issa knows about as much about the Constitution as Jenos does…really very little.

  51. Sam Malone says:
  52. wr says:

    @Jenos Idanian #13: “This woman was asked by the people who pay her salary just how she carried out her duties for which she was paid. ”

    What? I thought you personally paid her salary. That’s what you were claiming yesterday, anyway, when you were demanding the right to fire her personally.

  53. Caj says:

    Congress should be held for treason! Openly admitting that their plan is to derail anything President Obama puts forth! They are supposed to govern for the good of the country. Seeing as they have no intention of doing that treason is exactly what they should be charged with.

  54. Jon Bills says:

    In my opinion, there is a strong argument that she no longer has a right to invoke the 5th Amendment to avoid questioning.

    This 5th Amendment right is a right that protects against self-incrimination.

    She has said that she has done nothing wrong and committed no crime. If she has done nothing wrong and committed no crime, and if the 5th Amendment protects against self-incrimination, then the 5th Amendment is not applicable in this situation since it protects against self-incrimination but she has committed no crime.

  55. Jon,

    The brief opening statement she gave does not constitute a waiver of her right against self-incrimination.

  56. Sam Malone says:

    JKB clearly has no idea about the Constitution, or of the Law, yet pontificates as though he/she were the fount of all knowledge.

    “…Although, she apparently wanted to declare on the stand her innocence without being cross examined. That might turn out to be a fatal error. When you shut up, you shut completely up…”

    As per usual JKB is wrong.
    From the link I provided above:

    “When somebody is in this situation,” says Duane, a Harvard Law graduate whose 2008 lecture on invoking the Fifth Amendment with police has been viewed on YouTube nearly 2.5 million times, “when they are involuntarily summoned before grand jury or before legislative body, it is well settled that they have a right to make a ‘selective invocation,’ as it’s called, with respect to questions that they think might raise a meaningful risk of incriminating themselves.”
    In fact, Duane says, “even if Ms. Lerner had given answers to a few questions — five, ten, twenty questions — before she decided, ‘That’s where I draw the line, I’m not answering any more questions,’ she would be able to do that as well.” Such uses of selective invocation “happen all the time.”

  57. Jon Bills says:

    @Doug Mataconis: Doug, I’m not suggesting that her brief opening state acts a waiver. She could give a statement and then invoke her right if applicable. My point is that, if she has done nothing wrong or not committed any crime, then the 5th Amendment does not reach her situation.

  58. PD Shaw says:

    @Jon Bills: People are not necessarily guilty of a crime because they plead the Fifth. They might fear the expense, stress and time of a prosecution that they believe would result in an acquittal. They may be uncertain about the state of the law and are reluctant to present a test case. They frequently do so on advise of counsel because it makes their counsel’s job easier if their clients never speak . . . ever. They may fear that the conduct is not illegal, but embarrassing and apt to cast them in a bad light (on the Jon Stewart show), and are using the pretext of potential criminal investigation to that end.

  59. Gromitt Gunn says:

    @Jon Bills: Just because you believe that you haven’t committed a crime doesn’t mean that someone else will not think so, or that your statements will not be misconstrued, or that answering a seemingly innocent question will open up an avenue of inquiry that was unanticipated.

    Anyone assuming that they will be treated as innocent just because they believe they are is foolish.

  60. Gromitt Gunn says:

    @Jenos Idanian #13:

    If she didn’t break any laws, then she should say so.

    Have you broken any laws so far today? Are you sure? 100% sure that you haven’t broken a single law? Would you be willing to risk perjuring yourself by certifying that you haven’t broken a single law today?

    If you (and by you, I mean anyone reading this) thinks the answer to these questions is “Yes” , you’re either hopelessly naive, or an idiot, or lack capacity to enter into a contract.

  61. Jenos Idanian says:

    @Gromitt Gunn: Grommit, if my boss asks me what I did while on the clock, I need to answer them or expect to be fired.

    But then I’m not in the public sector, represented by a union that overwhelmingly supported Obama and Democrats, and whose president met with Obama the day before the IRS started targeting Tea Party groups, so I don’t have the “I’m a political hack, so I can count on the left to blindly defend me until Obama throws me under the bus” option.

  62. Gromitt Gunn says:
  63. Scott says:

    @Jenos Idanian:

    Grommit, if my boss asks me what I did while on the clock, I need to answer them or expect to be fired.

    Following your scenario: “I think you are stealing office supplies. Did you? Answer me or your fired. In the meantime, I want to search your house”

    Said employee better not have a stray office pen lying around.

    Silly example? Yes. But that is essentially what you are saying.

  64. Jenos Idanian says:

    @Scott: Could you please explain the “search your house” parallel here? ‘Cuz you’re starting to sound a bit like the IRS grilling a Tea Party group, not a Member of Congress in a hearing.

  65. Jenos Idanian says:

    @Gromitt Gunn: Oh, look, a simple question with a simple answer. That might be the first time for an Obama scandal.

    So, how about asking the IRS why they chose to break the Tea Party story by planting a question with a willing reporter at a completely unrelated event, heading off the report from their own internal investigation?

  66. Ben says:

    @Jenos Idanian:

    if my boss asks me what I did while on the clock, I need to answer them or expect to be fired.

    This analogy falls apart because if you tell your boss a falsehood, an inconsistency from a previous statement, or something he misinterprets as a lie, he can only fire you, not charge you with a crime.

    That is why it’s a poor analogy. A Congressional hearing is more akin to being interrogated by law enforcement, than it is like a closed-door meeting with your boss.

  67. Jenos Idanian says:

    Apparently, at the IRS, it’s cool to adopt the George Carlin approach to work:

    You can’t take shit from a guy just because you work for him. Let him know who the real boss is, tell him it’s your job. “Hey, it’s my job, I’ll do it my way!

    She has every right to assert her 5th Amendment rights. She doesn’t have the right to assert those rights and keep her job when being asked about how she does her job by the people who pay her salary — and Congress appropriates the funding for the IRS.

  68. mannning says:


    Issuing immunity to this one key person seems to me to be called for here. This negates the 5th I believe, but I am no lawyer. Congress should use all the tools available to open up this can of worms inside the IRS, and they should bypass Holder’s reach if at all possible. I believe the trail upwards to the Presidency, or his immediate staff, should be uncovered fully for all to see, and proper actions taken to get rid of any and all bad apples in the trail once found and proven. The claim that Obama was kept in the dark seems incredulous to me, or if true, it is a serious condemnation of how his staff operated and was managed by himself. “Plausible denial” techniques are well known too. One hopes also that the FBI investigation bares all of its findings for public consumption.

  69. Caj says:

    Impeachment is what Republicans want. They don’t care how they get it. Make stuff up, lie, cheat or steal. It makes no difference to them. To hell with fixing the country we haven’t got time for that, we have bigger fish to fry and that is getting Obama! So for all their indignation over this that or the other their main goal is clear. Impeachment time baby!! Pity we can’t impeach the lot of them. By God, the country would be better off if that party were to just go away for good!

  70. Jenos Idanian says:

    @Caj: That’s the tactic — rush for impeachment, watch it fail, then go after the critics.

    Sorry, ain’t gonna play that game. No need to rush to judgment here. Let’s get all the facts on the table, see just what happened, see who know what and when, see who did what and who ordered or authorized or turned a blind eye to what first. Once we know what happened, then we can see what should be done about it to make sure it doesn’t happen again.

    But impeachment? You’re really quick on the trigger, aren’t you? I think there’s an ointment you can apply to control that.

  71. Gromitt Gunn says:

    @Jenos Idanian: Further, the American people are not the boss of an IRS agent in the same way that the shareholders of Comcast are not the boss of your cable TV installer. The American people provide the capital to run the government and receive the benefits of that capital, but we do not manage the government. Rather, we hire the CEO (President) and the Board of Directors (Congress), who then function as our proxies in managing the government. And we do have mechanisms to remove them if they are not keeping the IRS agent in line.

    Additionally, as others have also noted, while your Board of Directors could direct you answer questions or be fired, they can’t send you to jail.

    I hate to break it to you, but no amount of gnashing of teeth and howling in inchoate rage is going to make you the boss of this woman. And we’re all much better off for that.

  72. Jenos Idanian says:

    @Gromitt Gunn: This woman is a Public Servant. I am a member of the public.

    You might be content to be a subject, but I’m not.

    And as for the “put her in jail” thing… the IRS itself is a law enforcement agency. Hell, some argue that the IRS is a law unto itself. (It’s certainly immune from a lot of restrictions put on other law enforcement agencies.)

    They don’t get to plead ignorance or hide behind protections like that.

    But I’m cool with her not being fired. That just means that the responsibility for her actions rolls upstream to her bosses. If they want to take on the responsibility for her actions, then let’s hold them accountable.

    At the same time, I agree with mannning. Give her immunity, void her 5th Amendment defense, and ask her the questions. Let’s see if she’s willing to keep silent then, when she’s facing jail time for not answering questions.

  73. PD Shaw says:

    Josh Marshall has articulated my position in the other thread better than I:

    My issue with Lerner has nothing to do with whatever actual culpability she may have or a principle of head rolling. It’s really that an executive shouldn’t stay in place when they’re taking the fifth, not under these kind of services when restoring trust is so critical . . . when you take the fifth in a case like this and you’re in a position of key responsibility, it’s just not tenable. Would also say that any sort of willful deception of Congress – even if it doesn’t meet the criminal standard – is probably enough for termination under these circumstances. But I don’t know the specifics of what she said and didn’t say enough. It’s really just about taking the fifth.

  74. wr says:

    @Jenos Idanian: “She has every right to assert her 5th Amendment rights. She doesn’t have the right to assert those rights and keep her job when being asked about how she does her job by the people who pay her salary — and Congress appropriates the funding for the IRS. ”

    Here we go again with every asshole’s favorite argument. “You can’t give me a ticket, officer. I’m a taxpayer — I pay your salary.”

    It’s true that congress appropriates money for the IRS. It’s also true that those who set up our system were aware that if congress is able to act like “the boss” to everyone who works in the government, then every action performed by ever employee will become politicized. That’s why we have the civil service, and the protections that go along with it.

    Apparently this doesn’t apply to a guy pulling Slurpees.

  75. wr says:

    @Jenos Idanian: “This woman is a Public Servant. I am a member of the public.”

    I realize you are stupid, but surely even you know this does not make her your servant.