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Lois Lerner takes the Fifth



The Constitution, which sets forth the principle of rule of law, defines what is unconstitutional, and guarantees freedom of speech and other liberties of a Constitutional republic, and also describes the impeachment power. (How many know of the Jewish roots of this document?) Hypocrisy threatens Constitutional government. Could Israel use a constitution like this? More to the point: would a Convention of States save it, or destroy it? (Example: civil asset forfeiture violates the Constitution.) Quick fixes like Regulation Freedom Amendments weaken it. Furthermore: the Constitution provides for removing, and punishing, a judge who commits treason in his rulings. Furthermore, opponents who engage in lawfare against an elected President risk breaking the Constitution.

Lois Lerner, the IRS official in charge of vetting tax-exemption applications, pleaded the Fifth Amendment yesterday. Besides botching her taking of the Fifth, she displayed an arrogant – and hypocritical – attitude.

What Lois Lerner did

The House Committee on Oversight and Government Reform sent a subpoena to Lois Lerner. Chairman Darrell Issa (R-CA) wanted her to talk about IRS targeting of conservative groups. On Friday (May 17), she:

  1. Scripted a question and had someone ask it of her at a tele-conference of tax lawyers,
  2. Admitted to something many conservatives already knew, and even
  3. Apologized for it.

Naturally Chairman Issa and his colleagues wanted to hear more about that. (Ranking Member Elijah Cummings, D-MD, did not. Yet. His attitude might now be changing.)

Congressman Issa had no plan to force her to listen to question after question, and repeat a litany of

Under the advice of counsel I respectfully decline to answer that question on the ground that it might tend to incriminate me.

Instead he proposed to call her, swear her in, take her declaration, and move on.

And then she made her Big Mistake. She opened with a statement. And in that statement she positively asserted her innocence.


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 this or any other Congressional committee.

And after she said all this, then she asserted her Fifth Amendment privilege.

While I would very much like to answer the Committee’s questions today, I have been advised by my counsel not to testify or answer questions related to the subject matter of this hearing.

Congressman Trey Gowdy (R-SC) challenged her on that. Had she not waived her Fifth Amendment privilege by saying anything at all to the committee? Chairman Issa was not ready to rule on that point. (Yet. Now, he is.)

Lois Lerner left the hearing room and avoided talking to the press. She was obviously in a great hurry.

What mistake did Lois Lerner make?

The Constitution. Did Lois Lerner waive her rights under this document?

The US Constitution. Photo: National Archives of the United States

Lois Lerner should have said nothing at all beyond “I have been advised by my counsel…” Instead she positively asserted her innocence and then refused to say anything further.

Trey Gowdy was a county prosecutor before he entered Congress. So he knows it doesn’t work that way.

Fred Thompson explains at National Review Online. Ken Klukowsi at Breitbart went further: she pulled a “media stunt” and waived her right by so doing.


The Fifth Amendment reads in part:

No person…shall…be compelled to be a witness against himself.

But the Supreme Court, in Rogers v. US, (1951), held that any defendant, once he says a word about matters the government might charge him with, must from then on answer any and all questions. One does not selectively claim this privilege.

Fred Thompson put it this way:

What if a witness testified as to his side of the story and then took the Fifth on cross-examination? No fair.

Trey Gowdy didn’t think that was fair, either. And now that he’s had a chance to think about it, neither does Chairman Issa.

Former IRS Commissioner Douglas Shulman might not have helped her any by his own attitude. He testified after she appeared. He was so arrogant that even Elijah Cummings lost patience with him. And after he got up from the green table, Chairman Issa told the world he would have Lois Lerner back before that green table, and no mistake.


Arrogance and hypocrisy personified

Arrogance is an institutional disease at the Internal Revenue Service. This disease goes back to its founding. But then-Commissioner Donald Alexander expressed it best of all:

The only way we can keep the people in line, the only way to keep them honest and paying their taxes, is to make them afraid.

Commissioner Alexander said that to a similar House Committee, one that also looked into IRS abuses of power.

But for Lois Lerner, or any senior IRS officer, to “plead the Fifth,” is also hypocritical. What taxpayer, facing an audit of his taxes, has any Fifth Amendment privilege? Actually, they have one. A taxpayer named Loren C. Troescher fought all the way to the Ninth Circuit, and won. The court held:

There is no general “Tax-Crime Exception” to the Fifth Amendment, and Troescher’s Fifth Amendment claims were not defeated here simply because he feared prosecution for tax crimes.

But does the IRS tell you that? Let anyone whom the IRS has graciously so informed, comment below.

More to the point: this official wasted years of court time trying to challenge the right of the Christian Coalition to guide voters in casting informed votes. She did this while at the Federal Elections Commission. She lost. Naturally the Oversight Committee wants to know whether she was up to her old tricks.


Chris Cilizza at The Washington Post fears she might have made the Obama administration look worse. First, her

I have not done anything wrong

will go down in history with Tom Daschle saying,

I am a DC resident

and John Kerry’s

I actually voted for the eighty-seven billion dollars, before I voted against it.

Second, she looks guilty. (And when she pleads the Fifth after saying she did nothing wrong, she contradicts herself!)

Third, she makes everyone at the IRS, or at least everyone at her level and higher, look like rats jumping off a sinking ship. The working phrase is now, Sauve qui peut. That does not inspire confidence.


Lois Lerner made not just one mistake yesterday. She made two. Only arrogant hypocrites make mistakes like that.

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Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.

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