Paul L. Caron

Friday, April 17, 2015

The IRS Scandal, Day 708

IRS Logo 2Wall Street Journal editorial, How Lois Lerner Got a Pass: The Prosecutor Absolved the IRS Witness on His Last Day on the Job:

If Americans know anything about the IRS it’s that it accepts no excuses, and so they trudged wearily on Wednesday to pay their taxes. That’s in notable contrast to the free passes that keep flowing to the tax agency’s most famous former employee, Lois Lerner.

The Obama Administration’s latest gift to the former IRS tax-exempt chief came recently when U.S. Attorney for the District of Columbia Ron Machen informed the House of Representatives that he would not file charges on its formal contempt citation against Ms. Lerner. This absolution, which shields Ms. Lerner from a grand jury probe, came on Mr. Machen’s final day on the job.

To review: Ms. Lerner was summoned to the House on May 22, 2013, to answer questions about her role in the IRS’s politically biased review of Tea Party nonprofit group applications for tax-exempt status.

She began her testimony with a statement recounting her career, reprising the scandal and proclaiming her innocence. She ended by saying: “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.” Only after she offered this long defense did she claim her right not to incriminate herself by citing the Fifth Amendment, refusing to answer questions.

House lawyers determined that, in making that statement, Ms. Lerner had forfeited her right to remain silent. The House on May 7, 2014 held her in contempt of Congress and sent the citation to Mr. Machen.

The law clearly explains that the U.S. Attorney’s only “duty” “shall be” to “bring the matter before the grand jury for its action.” Mr. Machen instead sat on the contempt citation for 11 months, and on March 31 sent Speaker John Boehner a letter explaining he’d unilaterally decided not to investigate Ms. Lerner.

According to Mr. Machen’s rationale, Ms. Lerner’s statement made only “general claims of innocence” that did not forfeit her Fifth Amendment rights to refuse to answer questions. To reach this conclusion, Mr. Machen had to willfully ignore that Ms. Lerner, in her statement, rebutted specific accusations against her.

“[M]embers of this committee have accused me of providing false information when I responded to questions about the IRS processing of applications for tax exemption,” she said, before claiming she had never done so. Those accusations had been detailed to her in a letter from former House Oversight Committee Chairman Darrel Issa, eight days before she testified.

Mr. Machen also had to ignore that Ms. Lerner had prior to her House appearance voluntarily met for an interview with Justice prosecutors. As the Heritage Foundation’s Hans von Spakovsky has noted, the D.C. Circuit Court of Appeals in its 1969 Ellis v. U.S. decision found that “once a witness has voluntarily spoken out, we do not see how his protected interest is jeopardized by testifying in a subsequent proceeding, provided he is not required to disclose matters of substance which are unknown to the Government.”

Since Ms. Lerner had already disclosed to the “government” (prosecutors), she lost her privilege to clam up before Congress. And we’d note that after her House stonewall, she again chose to speak in an interview with the Politico website. Ms. Lerner wants the right not to answer questions except when it suits her public-relations purposes.

In any event, the job of making these legal calls belonged to a grand jury—not Mr. Machen. Then again, this is the prosecutor who in an exit interview with the National Law Journal about his tenure touted his allegiance to Attorney General Eric Holder, describing him as a “tremendous mentor and a tremendous friend.”

After Mr. Machen’s performance in shielding Ms. Lerner from the consequences of her actions, Mr. Holder would no doubt return the compliment. The handling of the IRS scandal is a blot on both of their careers.

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Mr. Machen's decision, laid out in a seven-page, publicly available letter based upon uncontroverted facts and solid legal precedents, concluded that there was no reasonable expectation of convicting Ms. Lerner of contempt of congress. That is the customary standard used by the DOJ in deciding whether to prosecute. I have seen no critique of Mr. Machen's fact-finding or legal reasoning–only general condemnation from the like of Mr. VOI and Mr. wodun, neither of whom can articulate any reasoned basis for their blind anti-Obama, anti-Holder, and now apparently, anti-Machen prejudice.

Mr. Machen could have taken either of two easy ways off of the hot seat. He could have left the decision for his successor. He had too much respect for his successor to do that. Or, he could have directed one of his AUSAs to present the case to a grand jury, obtained an indictment, and lost the case on a motion to dismiss the indictment–and that surely would have been the result, given the known facts and legal precedents. But he had too much integrity to do that. Mr. Machen has performed to the highest standards of the bar and the Department of Justice. He deserves our respect and thanks for a job well done.

Posted by: Publius Novus | Apr 17, 2015 11:37:50 AM

Our systems relies a lot on the government workers and elected officials acting in good faith. The problem is that the current administration is corrupt and is enabled by militant activist groups and an ignorant, to be kind, electorate.

Posted by: wodun | Apr 17, 2015 9:52:08 AM

The Obama Team make the Nixon guys look like a bunch of amateurs. Obama's folks REALLY know how to lie, cheat, steal, and then...cover it up. Thanks compliant MSM.

Posted by: VoteOutIncumbents | Apr 17, 2015 9:14:29 AM