Paul L. Caron
Dean



Sunday, April 5, 2015

The IRS Scandal, Day 696

IRS Logo 2National Review, Making the Lois Lerner Problem Disappear, by Hans von Spakovsky:

On March 31, Ronald Machen, the outgoing U.S. attorney for the District of Columbia, wrote House Speaker John Boehner to inform him that the Justice Department would not present Lois Lerner’s contempt citation to a federal grand jury.

The letter explaining his decision is an exercise in misdirection—the kind of misdirection that magicians use to fool an audience. Why? Because at no point in his detailed, seven-page legal analysis does Machen mention the most important point demonstrating that Lerner did, in fact, waive her Fifth Amendment right. ...

In the March 31 letter, although acknowledging that the House Committee found that Lerner’s “opening statement was the equivalent of ‘voluntary’ testimony,” Machen concludes that, in declaring her innocence, Lerner did not waive her Fifth Amendment privilege because “case law establishes that Ms. Lerner’s general denials of wrongdoing did not amount to ‘testimony’ about the actual facts under the Committee’s review.”

Having decided that Lerner did not waive her Fifth Amendment privilege, Machen goes on to claim that it is within his discretion not to present the House’s May 7 contempt citation to a federal grand jury. He bases that claim on his reading of a 1984 legal opinion from the Justice Department’s Office of Legal Counsel. That despite the federal law, which provides that, once the House of Representatives has voted to find a witness in contempt, the speaker of the House must certify the matter to the “appropriate United States Attorney, whose duty it shall be to bring the matter before the grand jury for its action” (emphasis added).

Although this is debatable from a legal standpoint, and lawyers can disagree on whether Lerner’s declaration of innocence at the public hearing was or was not testimony that waived her Fifth Amendment privilege, what is not debatable is that there is a gaping hole in Machen’s recitation of the facts and his legal analysis.

According to The Wall Street Journal, right after Lerner’s frustrating March 5, 2014 appearance before the House committee, her lawyer, William Taylor III, told reporters at a press conference that Lerner had given a “lengthy interview” to Justice Department prosecutors “within the last six months, as part of the agency’s investigation into IRS targeting of conservative tea-party groups.” Taylor even admitted that Lerner had freely given DOJ her testimony without getting any promise of immunity from prosecution.

Why is this significant? Because, if Taylor is to be believed, Lerner obviously did not assert her Fifth Amendment privilege when she gave Justice prosecutors a “lengthy interview” about the very subject she had been subpoenaed to discuss with the House Oversight and Government Reform Committee. While the prevailing rule in most federal courts is that a waiver of the Fifth Amendment privilege at one proceeding does not carry through to another proceeding, that is not the rule in the District of Columbia. ...

Ignoring highly relevant, although perhaps inconvenient, facts, outgoing U.S. Attorney Ronald Machen has issued a flawed legal analysis. It reaches an erroneous, but politically expedient, conclusion—one that gives Lerner a pass and further hinders congressional efforts to get to the bottom of this scandal. It’s a pretty slick trick. No wonder Machen’s pulling a disappearing act.

https://taxprof.typepad.com/taxprof_blog/2015/04/the-irs.html

IRS News, IRS Scandal, Tax | Permalink

Comments

Can Ronald Machen be called in front of the committee to explain these omissions?

Posted by: Rick Caird | Apr 5, 2015 11:07:44 AM