In the House of Representatives, hearings before the Oversight and Government Reform Committee chaired by Rep. Darrell Issa (R. Calif.), on the conduct of the Internal Revenue Service, have continued. There is growing evidence of a carefully organized, administration-directed campaign effectively to suppress political speech by tea party organizations and other opponents of the Obama administration. It is now clear, after testimony last week, that the intimidation and harassment of the administration’s opponents directly involved individuals in the office of a presidential appointee, IRS Chief Counsel William Wilkins.
Yet even as individuals higher and higher up the political food chain are implicated, the name of Ms. Lois Lerner continues to loom large. For example, former IRS lawyer Carter Hull has now revealed that he attended a meeting in August 2011 at which Lerner, her senior advisor Judith Kindell, and lawyers from Mr. Wilkins’ office discussed plans for handling the tea party cases. The testimony reported this past week confirms that Lerner was one of a number of senior IRS officials in Washington involved in decisions about the processing of applications for 501(c)(4) status by tea party and other conservative organizations.
Since May 23 Ms. Lerner has been on leave with full pay, after an appearance before the House committee in which she made a sworn statement denying any wrongdoing and then invoked the Fifth Amendment, refusing to answer further questions. In late June, the committee adopted a resolution declaring that Lerner had waived her Fifth Amendment privilege by voluntarily giving self-serving testimony before taking the Fifth.
More recently, a committee spokesman said that if Ms. Lerner’s lawyer “is interested in discussing limited immunity, the committee will listen.” Washington attorney William Taylor, who represents Ms. Lerner, said that if granted immunity his client would have no choice but to testify. Mr. Taylor’s statement merely recognizes the governing law, under which Congress can compel Ms. Lerner’s testimony only by granting her immunity against any prosecution based on her truthful answers or information derived from them.
Of course, simply because Congress has the power to compel Ms. Lerner to answer questions under immunity does not mean that she and her lawyer are bargaining to have Congress do so. From the outset, moreover, the administration has stated that IRS conduct is under investigation by the Department of Justice. Press reports that none of the dozens of victim organizations and individuals has been interviewed by the DOJ or the FBI cast doubt on the vigor of the DOJ inquiry. Still, DOJ criminal investigations are confidential. And the agency has many skilled prosecutors who take seriously their responsibility to uphold the law and to prosecute federal crimes without regard to the politics of putative defendants
With both the committee and DOJ currently pursuing investigations into IRS misconduct, it is instructive to consider how an immunity negotiation between the investigating bodies and Ms. Lerner might unfold. It is also illuminating to ponder whether present political circumstances may be likely to alter the usual negotiating landscape.
In investigations that focus on the conduct of a variety of people in a large organization, it is relatively common for DOJ to approach individuals whose conduct places them at risk of possible prosecution, in order to explore their willingness to cooperate. Ordinarily DOJ will suggest that by providing incriminating evidence against others, and especially others higher up in the organization or who played a more significant role in unlawful conduct, a cooperating individual may secure more lenient treatment, or possibly a grant of immunity.
Under this scenario, DOJ might tell William Taylor that his client, Ms. Lerner, is in deep trouble. She is a candidate, the DOJ could say, for prosecution on two distinct types of felony charges. The first set of charges would include false statements, obstruction of justice, and similar “process” crimes relating to conduct in the course of the Congressional investigation. In addition, she could be charged with violations for her conduct in connection with the IRS targeting of conservative groups — charges that might include violating the civil rights of targeted organizations and individuals, and violations of laws prohibiting the improper use or disclosure of confidential taxpayer information.
DOJ would likely also tell Mr. Taylor that Ms. Lerner can help herself by cooperating. Specifically, DOJ might press to know whether she can provide evidence on “higher ups,” such as Mr. Wilkins, and specifics about the motives and conduct of individuals up and down the chain of command in the targeting program. If she comes forward and cooperates, then she might receive immunity or at least a relatively light sentence based on her cooperation. But if she refuses to cooperate, DOJ would add, she will be prosecuted on all charges, and her false statements and obstruction will be considered major aggravating factors calling for a stiffer sentence when the time comes.
As defense counsel, hearing something along these lines, Mr. Taylor might or might not urge Ms. Lerner to cooperate. In part that would turn on his assessment of a variety of factors: e.g., whether DOJ can really prove a case against her and is therefore likely to prosecute, who are the other individuals involved, and among them who might “flip” or be “turned” by DOJ to give evidence against Lerner (or others) in order to save themselves.
Also, whatever Mr. Taylor’s assessment, Ms. Lerner is the client. She gets to make the final decision whether and how to cooperate, and she doubtless has her own goals. She might actually prefer to take her chances rather than save herself by “ratting out” others involved. On this point, if Lerner believes that her colleagues are hanging tough, she may be more inclined to do the same herself.
On the other hand, suppose for a moment that Ms. Lerner is scared and feeling a bit hung out to dry in this affair. She might be saying to Mr. Taylor, “Look, I do not like the way this is going down. I am being set up to be a sacrificial lamb, and while I was on board with this whole operation, I did not sign up to be prosecuted for it. So, I want you to get me off the hook here. If that means I have to tell it like it really was, I’m prepared to do that. And then some high and mighty heads will roll.”
This brings us to the key question. Does Ms. Lerner really have to cooperate to avoid prosecution? If the matter were left to the typical, highly professional DOJ prosecutors many defense lawyers know and respect, the answer would almost certainly be yes. After all, DOJ lawyers are generally keen to prosecute people like Ms. Lerner, who they would view as having abused the public trust as an IRS official, and then lied about it under oath.
Happily for her, Ms. Lerner has an ace in the hole: Eric Holder. Mr. Holder remains the Attorney General. He will make the final decision on any action to be taken as the result of the IRS investigation now being conducted by DOJ and the FBI. In contrast to many fine professionals in the Department of Justice, Mr. Holder has not shown consistent allegiance to the rule of law. He has faced choices between political expediency and even handed law enforcement on a number of occasions, and his track record bodes very well for Ms. Lerner.
With this in mind, hypothetically Mr. Taylor might address his client’s concerns this way: “Listen, trust me, no matter what the staff prosecutors recommend, there is no way Eric Holder will authorize prosecutions that could shine a light on what really happened at the IRS. He is not looking to prosecute anybody here, so let’s not do anything that might make it tougher for him to close this investigation after some time goes by.”
“Keep in mind,” he might add, “our friends in the media have already come around -- the Washington Post, the New York Times, and the major networks barely even cover this story any more. The Democrats in Congress are calling this a big overreach by the Republicans, saying it’s time to move on. So, if we just sit tight, the odds are good this will fade away.”
“At the end of the day,” Mr. Taylor could continue, “Eric Holder will say there has been a thorough investigation, DOJ interviewed many witnesses and reviewed reams of documents, but we did not find a basis for bringing criminal charges against anyone. If Holder is cross-examined, he’ll just say he can’t talk about any details, because federal grand jury investigations are secret.”
“And remember,” Lerner’s lawyer might conclude, “at this point Eric Holder is no babe in the woods. He has declined to enforce the law against the Black Panthers in Philadelphia when they didn’t even contest the charges, he has refused to investigate all sorts of vote fraud allegations, not to mention schemes to defraud assorted federal entitlement schemes. He has repeatedly stonewalled Congress on the Fast and Furious operation, and has already declined to prosecute the IRS for leaking confidential taxpayer information on conservatives. So don’t think he’ll just roll over and sell you out.”
The odds that Lerner will choose to rely on ace-in-the-hole Holder are enhanced by the fact that she, her lawyer, her superior Mr. Wilkins, and numerous others involved are all reported to be staunch supporters of (and generous campaign contributors to) President Obama. They share a common interest in doing what’s best for Team Obama, and they were listening when the President said that his administration will reward its friends.
Lerner’s motivation to stonewall will be no different if the committee seeks to compel her testimony. A Congressional immunity order would not protect Lerner from prosecution based on evidence already in the record, which could be used without any reliance on her immunized testimony. Likewise, such an order would not protect her from prosecution for perjury or the like should she lie when testifying under immunity. But Congress itself has no power to prosecute her. Congress can only refer the matter to DOJ, where her ace in the hole -- the political appointee who can kill the case -- remains our Attorney General, Eric Holder.
A potential game changer here would be the appointment of a special prosecutor who is serious about getting to the bottom of things and not just going through the motions. In that unlikely event, then Ms. Lerner would have some very difficult decisions to make.
Meanwhile, Ms. Lerner strikes me as a pretty tough cookie. I will not hold my breath waiting for her to cooperate with the IRS investigation in any genuinely meaningful way.
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