The IRS official at the center of the targeting controversy will testify before the House oversght committee as long as she gets full immunity from prosecution, one of her lawyers said yesterday.
Lois Lerner, the former head of the exempt section of the IRS that targeted conservative groups for extra scrutiny, took the fifth at her previous appearance before the committee right after she declared her innocence. Republicans on the committee say that her statement of innocence meant that she waived her fifth amendment right to self incrimination and she should testify willingly.
"They can obtain her testimony tomorrow by doing it the easy way ... immunity," William W. Taylor III said in a phone interview. "That's the way to resolve all of this."
The comments reflect the hard-line approach Lerner, the former head of the IRS division that scrutinized conservative groups, and her legal team are taking in defending her role in the agency's scandal.
Taylor, a founding partner of Zuckerman Spaeder LLP, is even shrugging off the possibility that the full House might vote to hold Lerner in contempt.
"None of this matters," he said. "I mean, nobody likes to be held in contempt of Congress, of course, but the real question is one that we're fairly confident about, and I don't think any district judge in the country would hold that she waived."
The oversight panel voted along party lines last week that Lerner waived her Fifth Amendment rights at a May 22 hearing when she boldly declared her innocence in the IRS scandal and said she violated no laws - then invoked her constitutional protections to ward off self-incriminating questions from lawmakers.
Republicans immediately argued that Lerner forfeited her Fifth Amendment right by speaking and they should be allowed to question her opening statement.
Legal experts disagree about whether she actually did.
But in the eyes of the committee, Lerner - who was placed on administrative leave after refusing the new IRS leader's request to resign - is obligated to now answer questions related to her earlier statement.
"The committee is entitled to Ms. Lerner's full and truthful testimony without further conditions," said panel spokesman Frederick Hill in a statement to POLITICO. "If, however, Ms. Lerner's attorney is interested in discussing limited immunity, the committee will listen."
If her attorneys want full immunity for her, do they think that she participated in something that requires protection from prosecution? But what? I've read a lot of lawerly posts that speculate on what laws were broken, but there is little agreement what statute was violated - if any. Perhaps it says something profound about the IRS that they can harrass and target political groups without fear because there's no law to prevent them from doing so. Aaron Blake at WaPo speculated that there were three possible violations that would result in criminal charges:
1) Civil rights laws that protect people from being discriminated against by the government
2) The Hatch Act, which prevents civil servants from engaging in partisan political activity
3) Perjury laws, which prevent people from lying to Congress
Of the three, the best case would appear to be a violation of people's civil rights. And a couple of IRS officials may have left themselves open to charges of perjury in their congressional testimony. Both charges are hard to prove, however, and a prosecutor may not think the effort worth it.
I doubt whether Lerner has any blockbuster revelations. Her lawyer would have traded on that already. But her testimony could very well increase our understanding of what happened at the IRS and lead the investigation to areas that so far have gone unreported.