Lois Lerner Fights Back!

Just when the media is beginning to really pressure Congress to grant Lois Learner immunity – “the American people need to know, so let her talk” – her lawyer plays the Sergeant Schultz card from Hogan’s Heroes.  "I hear nothing, I see nothing, I know nothing!"

He has validated Chairman Issa’s position on Lois Lerner being uncooperative, so why bother?  This back-and-forth also has probably being going on for some time between Lerner’s legal teams and Congress, and now it is the former's apparent public strategy.

In this epic constitutional battle and the quest for transparency and justice, Lerner's lawyer has to be taken very seriously.  According to his law firm's marketing blurb, William Taylor III (Yale Law ‘69):

... is also well-known for his creative motions practice and is often successful in obtaining dismissal of charges against his clients before trial. He is equally at home in complex commercial litigations and straightforward credibility contests. Clients retain him not only for his litigation successes but also for his judgment and advice.

As a pro, he must know the rule that he has decided to violate: if you are explaining, you are losing.  Someone with his self-identified lofty proven judgment has a legal strategy and a purpose to his engaging the media now.  So how is it going?

Let’s look at his opening move: “She doesn’t know what happened,” Taylor said of the 2011 computer crash that erased two years’ worth of Lerner’s correspondence.  “It’s a little brazen to think she did this on purpose.”

First, he is actually asserting that she didn’t do it on purpose.  But it did happen, so she either she did accidentally or someone with reach power and understanding of the consequences of the e-mails ordered it done.  Over to you, IRS leaders and/or the White House:

“You don’t refer people to the exempt organizations division,” he said, calling the accusations “false” and “irresponsible” on Ways and Means’ part.

He picks a very public fight with the House Ways and Means Committee and with all the American voters, who by implication were “false” and “irresponsible” in their voting.  Counselor, members do not vote themselves in; your words have nationwide reach beyond just the hothouse Beltway posturing society.

He then picks a public fight with Senator Grassley.  Everyone – it makes no difference, Republican or Democrat – knows that the senator from Iowa really knows how to investigate with focus and energy.

Responding to recent Ways and Means GOP allegations that Lerner tried to sic an IRS audit on Grassley, Taylor said they were mistaken and Lerner was simply suggesting a referral for the group, not the Iowa lawmaker.

Apparently Lois is so used to bullying the little people that she and her lawyer do not recognize that the power balance has shifted to her supreme disadvantage.  Just like first trying to blame IRS civil servants in Cincinnati, attorney Taylor throws Lerner’s underlings – "her staff" – under the bus.  Does he not think they will talk about her intent and speak of her day-to-day activities when the FBI (?), Congress, and the media follow up?  

But Taylor retorts that such responsibility would have fallen on her assistants or the IRS.

“If somebody is supposed to keep archived copies, that’s the IT department’s or her staff’s responsibility,” he said. “If she didn’t [print] something, it wasn’t because she tried to conceal anything. … There should have been [IRS] backup[.]

But there might be an explanation for such an in-your-face strategy in his point about trying to win a “straightforward credibility contest.”

Even though Lerner threw away her bargaining chips, she still has two significant ones: the apparent continued inaction by the attorney general and the possibility of a presidential pardon.

To use a newer D.C. cliché, is Lerner's lawyer hearing a dog whistle from the White House?  Or even actively colluding with the administration in her defense?  If it turns out that Lois Lerner’s lawyer needs a lawyer, it will be priceless.

His “attorney/client” card can be played, but perhaps committee investigators would like to talk with Attorney Taylor’s as a self-identified subject matter expert (SME) on the IRS and learn from all his in-depth insights.

He said it was simply the job of Lerner and the IRS to ensure such tax-exempt organizations follow the law, which bars them from using more than about half of their resources engaging in politics.

Regardless, and perhaps because of such slick D.C. legal games, the voters can get totally disgusted, and the IRS will take some huge legislative hits after the midterms.  Politically, the longer this plays out, the more politically savvy Democrats will not want to be defending IRS – especially when the IRS may also  become the enforcer of ObamaCare.

Taking another page from history, the administration's criminal behavior in using the IRS as a weapon may, in the words of Admiral Yamamoto after his successful strike on Pearl Harbor, come to a head in today’s political environment:

"I fear all we have done is to awaken a sleeping giant and filled him with a terrible resolve.”

Way to go, Counselor!

Ed Timperlake was on the the professional staff of the House Committee on Rules, investigating illegal foreign donations to the American political process.