June 23, 2018
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When federal officials plead the Fifth, it makes the whole government look bad

U.S. Internal Revenue Service Director of Exempt Organizations Lois Lerner sits for testimony before a House Oversight and Government Reform Committee hearing on targeting of political groups seeking tax-exempt status from by the IRS, on Capitol Hill in Washington, May 22, 2013.
By Joe Davidson, The Washington Post

WASHINGTON — Like plaids with stripes, federal employees wrapped in the Fifth Amendment don’t look good.

We all have the right to wear clothes that clash, and all in this country have the right not to provide testimony that could be used against them.

But when federal workers invoke that right, as Lois Lerner did at a House hearing Wednesday, it comes at a cost. A public servant who refuses to answer questions from Congress about the public’s business clashes with the public’s expectations.

By asserting her right, Lerner further undermined the credibility of her employer, the Internal Revenue Service, an agency whose reputation has been beaten bloody by the scandal over the targeting of conservative organizations.

It’s not fair, but it is inevitable — and understandable — that Lerner’s refusal to answer questions gives the impression that she has something to hide about her involvement in the targeting.

That’s a tough spot for someone who has developed a reputation for fairness over nearly 35 years of federal service. “I am very proud of the work that I have done in government,” she said.

Ironically, Lerner, the IRS director of exempt organizations, seems to be the only one who tried to stop the targeting, which is not to say her hands are totally clean.

When she learned that IRS staffers were using inappropriate criteria, she “immediately directed that the criteria be changed,” according to an inspector general’s report.

Yet, as she acknowledged, members of Congress “have accused me of providing false information” and The Washington Post’s Fact Checker has awarded her four Pinocchios, signifying “whoppers” for “misstatements and weasely wording” in previous statements.

Actually, Lerner did testify before the House Oversight and Government Reform Committee hearing, but only through her prepared statement. Her attorney, William W. Taylor III, had tried to get her excused from the hearing because of an ongoing Justice Department criminal investigation, saying in a letter to the panel that having her appear “merely to assert her Fifth Amendment privilege would have no purpose other than to embarrass or burden her.”

Lerner seemed more defiant than embarrassed.

Succeeding in having it both ways, she provided her side of the story but refused to answer questions, raising heated objections from at least a couple of Republicans.

“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,” she said with emphasis. “And while I would very much like to answer the committee’s questions today, I have been advised by my counsel to assert my constitutional right not to testify or answer questions related to the subject matter of this hearing. . . .

“Because I’m asserting my right not to testify, I know that some people will assume that I’ve done something wrong. I have not. One of the basic functions of the Fifth Amendment is to protect innocent individuals, and that is the protection I’m invoking today.”

Minutes later, she was gone.

But not forgotten.

Committee Chairman Darrell Issa, R-Calif., said he would like to recall Lerner, contending that she might have effectively waived her right not to answer all questions when she read her prepared statement and verified a document in response to his request. Some lawmakers have called for her head, underscoring her reason to avoid providing any ammunition to critics and investigators.

At Tuesday’s Senate Finance Committee hearing into the IRS, the first question from Chairman Max Baucus, D-Mont., was “Why weren’t people then fired or transferred” after the agency’s management learned at least a year ago about the use of such terms as “tea party” in the selection of groups for extra scrutiny.

Steven Miller, the acting IRS commissioner, said one employee was transferred and another was recommended for oral counseling. Also, Miller’s resignation has been accepted, and Joseph Grant, commissioner of the agency’s tax exempt and government entities divisions, announced plans to retire.

But neither of them was initially responsible for the decision to resume the targeting after Lerner tried to stop it. Who was responsible? Nobody seems to know.

“The IG said he doesn’t know who made the decision to resume; the IRS commissioner doesn’t know who made the decision to resume,” said an exasperated Sen. Michael Bennet, D-Colo., to Miller at the Senate session. “I mean, did you ask these questions?”

Miller’s response: “I was told a name, and it turned out they didn’t think that was the correct name.”

I don’t favor letting federal employees, especially the lower-level folks, twist in the wind, or naming them publicly for bureaucratic mistakes, if that’s what this was. Yet the inability of the top man in the IRS to say who is responsible for this scandal after all this time, after all these inquiries, is incredible.

But rather than a cover-up, this smells of the bad management documented in the inspector general’s report. Issa noted that this scandal involves a very small number of IRS employees. They were failed by their leadership.

“One thing is clear,” Del. Eleanor Holmes Norton, D-D.C., told the House hearing, “we see here at least terrible incompetence in the absence of the normal managerial oversight you’d expect in any federal agency, certainly the IRS. …The civil servants are doing their incompetent best, I suppose.”

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