Saying that Lois Lerner did not waive her Fifth Amendment rights at a congressional hearing two years ago, US attorney for D.C. Ronald Machen said in a letter to Speaker of the House John Boehner that the Justice Department would not prosecute the former IRS manager for contempt.
During her testimony in 2013, Lerner read a self-serving statement into the record and then took the Fifth. Former prosecutor Rep. Trey Gowdy said at the time that by giving her statement, Lerner had waived her Fifth Amendment rights:
“She just testified. She just waived her Fifth Amendment right to privilege,” Rep. Trey Gowdy, R-S.C., a former federal prosecutor, said, “You don’t get to tell your side of the story and then not be subjected to cross-examination. That’s not the way it works. She waived her right to Fifth Amendment privilege by issuing and opening statement. She ought to stand here and answer our questions.”
Gowdy was probably right except for one thing: that’s not the way it works in Obama’s Washington.
In a statement, the U.S. attorney’s office stressed that career prosecutors made the decision to not bring charges against Lerner and that the Constitution gives the former IRS official “an absolute defense” against prosecution.
Bill Taylor, Lerner’s lawyer, said he and his client were “gratified but not surprised by today’s news.”
“Anyone who takes a serious and impartial look at this issue would conclude that Ms. Lerner did not waive her Fifth Amendment rights. It is unfortunate that the majority party in the House put politics before a citizen’s constitutional rights,” Taylor said. “Ms. Lerner is pleased to have this matter resolved and looks forward to moving on with her life.”
Still, Machen’s letter only addresses the contempt of Congress charge that Lerner received last year. Attorney General Eric Holder announced that the Department of Justice (DOJ) would conduct a criminal investigation into the IRS’s scrutiny of Tea Party groups shortly after the controversy broke in May 2013.
Emily Pierce, a DOJ spokeswoman, said the department will “complete our investigation as expeditiously as possible.”
“The Justice Department launched its IRS investigation without hesitation and immediately after public revelations of potential misconduct,” Pierce said. “Since that time, it has been conducted by career prosecutors and law enforcement agents with the utmost of integrity, and department officials have regularly characterized the investigation as a top priority.”
Congressional committees are also still looking into the matter. One of the panels, the House Ways and Means Committee, sent the Justice Department a criminal referral last year with potential charges that could add up to 11 years in jail.
Following Machen’s letter, Michael Steel, a Boehner spokesman, said the Obama administration had once more “tried to sweep the IRS targeting of taxpayers for their political beliefs under the rug.”
“But unaccountable federal bureaucrats using their power to attack the First Amendment strikes at the heart of our democracy, and the American people deserve the truth,” Steel added. “The White House still has the opportunity to do the right thing and appoint a special counsel to examine the IRS’ actions.”
GOP lawmakers have pushed for a special prosecutor for months, pointing out that one of the DOJ lawyers looking into the case was an Obama donor. Republicans also have insisted that Machen was “legally bound” to send their contempt charge to a grand jury.
If the DoJ investigation is a “top priority,” what have they been doing for two years? Mr. Machen is stepping down soon, making this decision one of his final acts. It will take some time for his successor to get up to speed on the investigation, which means more delays.
Incredibly, Lerner’s attorney says that his client cooperated with the Justice Department investigation but wouldn’t answer questions from lawmakers “because they didn’t trust Republicans to run a fair investigation.” The implication is that Lerner was among friends when being deposed by DoJ officials.
No one really expected DoJ to pursue this matter with any energy. And now they’re at the point where they can run out the clock. Unless a Republican president taking office in 2017 lights a fire under the prosecutors, it appears that Lerner and her friends at the IRS are going to get away with it.