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Why does Lois Lerner still have her job?

May 23, 2013

AP_Documents_BillofRightsYesterday I posted about the House Oversight Committee hearing regarding the IRS scandal. I posted my thoughts about the testimony from Douglas Shulman, who was the Commissioner of the IRS during the scandal period; Neal Wolin, the Deputy Secretary of the U.S. Department of the Treasury; and J. Russell George, the Treasury Inspector General for Tax Administration. One item I did not post about was the testimony from Lois Lerner, Director of the IRS’s Tax-Exempt Division. I decided to write separately about Ms Lerner since she provided testimony and then pleaded the 5th.

Before the hearing yesterday Lois provided a two and a half-minute testimony before the Committee. The testimony can be seen here on Politico. At the end of her testimony she was dismissed by Rep. Issa since she made it clear she would not be answering questions. Apparently her counsel had advised her pleading the fifth would be best in this situation. The Fifth Amendment is used to protect citizens from self-incriminating themselves. Here is the exact text of the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

In my mind there are two important questions left after Ms Lerner chose to plead the fifth. First, can a person plead the fifth after providing testimony? Second, why does Ms Lerner still have her job after pleading the fifth?

For the first question I will defer to an excellent article over at United Liberty from Jason Pye. At the core of this issue is the fact Ms Lerner provided testimony (what she calls an opening statement) but then refused to allow cross-examination. Did Ms Lerner waive her right to pleading the fifth when she provided testimony? The Supreme Court in the past has ruled that the fifth cannot be utilized once testimony is given. It really comes down to the whether the opening statement is considered testimony. Mr Pye’s article explains this much better than I ever could.

Now, the second question I have no problems answering: Ms Lerner should be fired immediately. As the Director of the IRS’s Tax-Exempt Division she is in the employee of the American people. She must also answer to the oversight power provided to Congress. By choosing not to answer questions from the oversight committee she has proven herself to be an unfit employee. Pleading the fifth may protect her from testifying against herself in criminal matters; however it does not protect her job as a high-level manager working for the taxpayers. It is hard to comprehend how she still has her job. As a high-level manager she is accountable for her actions and for those that work in her division. By choosing not to take accountability she has proven herself unfit as a manger and should be excused from her job immediately.

Going forward this will be an interesting case to watch. Personally I think we will see Ms Lerner testify with immunity being provided. Once she is given immunity it is hard for Ms Lerner to publicly justify why she will not answer to Congress or the American people. But, as I said before, no matter what Ms Lerner should be fired and prevented from ever working on the taxpayer dime again.

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