In Defense Of Lois Lerner

You’d think she killed somebody.

Lois Lerner, who on Wednesday invoked her right against self-incrimination, is being attacked, by nearly everyone in the country who knows who she is, for her role in the IRS v. Tea Party “scandal,” which, of course, isn’t quite a scandal yet, but Republicans keep trying. Some of the most vicious attacks are coming from Constitution-loving right-wingers, who can’t believe Lerner would actually use something other than the Second Amendment to protect herself.I Have Not Done Anything Wrong: IRS Official Lois Lerner Invokes 5th Amendment Right

MSNBC’s conservative gabber, S.E. Cupp, who provides a damn good reason not to watch that network’s afternoon show “The Cycle,” took to tweetin’ yesterday to say,

So, Lois Lerner is either a coward or a criminal, right? Tell me where I’m wrong.

Apparently, S.E. Cupp studied the Constitution at the Rush Limbaugh School of Law, which ought to be enough right there to tell her where she’s wrong.

And speaking of Professor Limbaugh, he said about Ms. Lerner:

Okay, let me tell you what happened today at the IRS hearings. Lois Lerner, who ran the whole kit and caboodle and was… By the way, this was the first time I had a close-up look at her. This is an angry woman. You have to be very careful in making judgments about people based on physical appearance, although I’ve gotten really good at it. I can spot people out there and I can tell you who the libs are pretty much by just what I see. But, in this case, I already know that she is.

I already know that she’s a liberal, I know that she is in the same mode as Barack Obama, and now I know this is a woman who’s angry…This is a woman obsessed with the Christian right, Lois Lerner. This is a woman obsessed with religious people.

Okay. So, from two popular conservative commentators (there are a thousand more to choose from) we know that Lerner, by refusing to testify, is an angry, Jesus-hating woman who is either a criminal or a coward. All because she dared to avail herself of a constitutional right. Hmm.

The honcho of the Republican National Committee, the insufferable Reince Priebus, himself issued a Tweet regarding his discussion with Sean Hannity about this mess:

…it’s lawlessness and guerrilla warfare and Obama is in the middle of it.

Yikes! Obama is a gorilla, uh, guerrilla!

In any case, Priebus, appearing on Morning Joe today, commented on Lois Lerner’s right-invoking committee appearance:

You don’t need to plead the Fifth if you have done nothing wrong…

Obviously, Priebus also attended Rush Limbaugh’s law school. Even though he was aggressively challenged by Morning Joe regular John Heilemann, Priebus didn’t back down. In Priebus’ strange and disordered mind, pleading the Fifth is tantamount to an admission of guilt, don’t you know. Damn those Founders!

But right-wingers aren’t the only ones saying such stupid things. This morning on Morning Joe, which prejudicially carried a graphic characterizing Lerner’s brief statement as “defiant,” I heard Andy Serwer, managing editor of Fortune magazine, for God’s sake, say this:

What an unsympathetic position. We just saw her pleading the Fifth. This is something that mafia chieftains do in front of Congress, not public officials, not someone from the IRS. Obviously everyone just wants to know the real story, we want her to come clean. How bad could it be? I’m sorry, “You need to tell what’s going on here,”  and, you know, to just do otherwise is just ridiculous, and the IRS is just going to continue to be a piñata. And obviously is not’s just right-wing groups who are upset with this, but every American citizen should be upset with this.

Mafia chieftain? Wow. So much for presumed innocence. I remind you that the man who said that is a, gulp, journalist.

Well, I may be the only one in the world who has sympathy for this woman, but I can’t help it. I still happen to believe in the noble and once-American concept of innocent-until-proven-guilty. And I really do believe in the Constitution, which also includes the Fifth Amendment’s right to remain silent should someone try to compel any person “to be a witness against himself.”

Republican legislators, who, like all Tea Party-drunk conservatives, claim to love, cherish, and lustily sleep with the Constitution, were upset on Wednesday when Ms. Lerner invokedLois Lerner her Fifth Amendment right just after she made a plea of innocence and after Darrell Issa, headhunting chairman of the House’s Oversight and Government Reform Committee, talked her into authenticating a document.

I watched as Trey Gowdy, a former federal prosecutor who now represents right-wing folks in South Carolina’s 4th congressional district, forgot that he was not in a federal courtroom but at a congressional hearing and insisted that Lerner “ought to stand here and answer our questions.” Uh, she was actually sitting at the time, but then, hey, maybe being a former prosecutor and current zealot entitles one to demand that witnesses stand during the inquisition. Heck, why not go the whole way and roll out the rack? Bones cracking would make good TV.

But that’s beside the point. Gowdy said of Lerner,

You don’t get to tell your side of the story and not be subject to cross-examination.

Whoa, cowboy. Settle down there. (Some folks in the gallery were applauding at Gowdy’s prosecutorial grandstanding, and Issa did nothing to stop them, by the way.) Lerner didn’t actually tell her side of the story. There’s a lot of story to tell, if she ever tells it, and she didn’t even come close with these words:

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

After very careful consideration, I’ve decided to follow my counsel’s advice and not testify or answer any of the questions today. 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.

After initially and correctly telling everyone that they should respect Lerner’s Fifth Amendment right without prejudging her, Issa later put on his big-boy Tea Party pants and now agrees with Gowdy and others who believe she lost her constitutional right not to incriminate herself. He’s going to call her back to appear again. Whoopee! More good cable TV to come!  Maybe next time they really will crack her bones!

As with so many things in this litigious world of ours, there are at least two sides of this Fifth Amendment “controversy.” There are those lawyers who think she did not waive her Fifth Amendment right against self-incrimination by offering a brief statement of her innocence. Of course, those lawyers did not attend the Rush Limbaugh School of Law, so what do they know?

And, of course, as Reince Priebus indicated, this all comes back to President Obama. Conservative Republican Joe Scarborough said on MSNBC this morning,

Why is the president allowing this to go on? This IRS story is another great example of just sheer incompetence at the White House to get their story out in a clean, effective way…

Yes, the Prez should simply strip Ms. Lerner of her constitutional rights, force her to tell Darrell Issa what he wants to hear, and then impeach himself after it’s all done. That, and only that, will satisfy the mob.

Finally, the truth in all this just may be found in a little article on The Daily Beast published today. The story quotes a man who used to hold the same position Lois Lerner now holds:

“It was inevitable something was going to happen,” said Marcus Owens, who served as director of the IRS Exempt Organizations Division from 1990 until he retired in 2000. That was the same year that the 1998 IRS Restructuring and Reform Act was implemented, ushering in, he said, a culture of disorganization and miscommunication.

“Virtually all IRS executive positions were re-aligned and re-evaluated and a lot of field offices positions were eliminated. The channels of communication between field offices and the Washington headquarters were muddied,” Owens said. “Instead of having clear, hierarchical oversight, Cincinnati was given the responsibility to handle things that would normally be handled by the better-equipped Washington office.”

He went on to say,

“This is a case of funding problems and management problems. Everyone is thinking that the IRS was hunting down conservative organizations with bloodhounds or something when what they were really doing was opening the morning’s mail… The IRS is really a collection agency for the government. Tax returns that generate revenue must be accurate, but those that don’t generate revenue receive less attention,” he said. “That’s just the way it is.”

I doubt very much if we hear a lot from Marcus Owens or hear a lot about the IRS Restructuring and Reform Act of 1998. But we should. (By the way, only two U.S. Senators voted against that bill, including that great progressive, the late Paul Wellstone, so that ought to tell us something.) The likelihood that we won’t hear much about Owens or that 1998 law tells us something very important about the state of journalism these days, perhaps something more important than a prominent journalist going on TV and comparing a Fifth Amendment-invoking IRS employee to a “mafia chieftain.”


[photo credit: Getty Images (top) and AP (bottom)]


  1. Because Lerner really didn’t do anything wrong. When you open the refrigerator and it doesn’t smell right, you poke around until you find the rotten egg or the out of date onion dip. The IRS investigated stuff that smelled a little rotten. Liberal and Conservative groups a bit over zealous in their election involvement should have their tax status evaluated. And both left and right were and are. This is smoke. No investigation of the big groups, though. How did that happen? My cynicism is expanding exponentially. The hope of the Tea Party and its smelly astroturf funding is that all investigation shuts down. The President sleep walked into this mess by not defending the IRS. He needs to get back on his meds. He’s really starting to piss me off.


    • General,

      I think you make the salient point in all of this stuff, and one which Obama ought to make himself, repeatedly. The big groups have gotten away with, and will continue to get away with, political activity that is clearly contrary to the original statute governing those groups.



  2. Michael D. Gaden, BSNE, MBA

     /  May 23, 2013

    Limbaugh probably is pretty good at picking out angry people by how they look. He has lots of experience – he apparently shaves every day. He’s probably also pretty good at picking out stupid people by how they look.


    • Michael,

      After listening to him for almost twenty years, I can tell you that he thinks he is damned good at judging people by their looks, or by hearing them speak a sentence or two, or by whom they associate with. That is part of what makes him so poisonous. Most of his radio day is spent convincing the convinced that Democrats, especially the “Scary Negro” in the White’s House, are very dangerous people. And convincing he convinced is how, by the way, he has become so fabulously wealthy.



  3. It seems to me that Speaker Boehner made IRS employees taking the fifth inevitable. At the very start of this issue he had the audacity to demand that someone go to jail. I don’t question that the IRS could be misused, and shouldn’t be. At the same time though, any member of Congress shouldn’t demand jail time before an investigation and due process has even begun of a matter that looks more like incompetence than criminality to me.


    • “It seems to me that Speaker Boehner made IRS employees taking the fifth inevitable. At the very start of this issue he had the audacity to demand that someone go to jail.

      I had the same thought, Bruce. It is unimaginable to me that anyone in Lerner’s circumstance could hear those words and not take the Fifth! Further, and seeming lost in all this kerfuffle, is the glaring fact that any group with the words “tea party” or “patriot” in their name might, just might, be more likely than some others to have some political objective and not just a charitable one and therefore be ineligible.

      Maybe the Generalist is right on this one – maybe Big O ought to have defended her and fought it out. But then again, almost everybody hates the IRS and that kind of emotive substitute for thinking is exactly what powers the Tea Party, the belief bordering on the spiritual that Big Government is everybody’s enemy. Until the tornadoes hit and stuff like that of course, but never mind that. They’re all on a roll and momentum is building. Won’t it be poignant if they win in 2016 and find the machinery of government so damaged that in can’t even be recovered? Oh well, they’ll just blame that on Obama.


    • Absolutely right on, Bruce. When the Speaker of the House comes out of the gate demanding jail time, all bets are off for getting civil servants, who are protected by federal statute and by the Constitution, to spill their guts before a hostile, Republican-dominated, Tea Party-drunk, House committee.


  4. Anonymous

     /  May 25, 2013

    The IRS also targeted some very pristine Catholic authors, bloggers, educators and inappropriately went after them personally, far in excess of the margins of their non-profit applications. And the IRS leaked private confidential ROMNEY tax documents which were used by and in the possession of Obama’s 2012 campaign co-chair. That this is a proven fact because there was a forensic investigation on the Romney document trail and they uncovered several layers of metadata until discovering the first iteration bore the IRS privacy language in the margins of these very same Romney tax documents. Further, the IRS gave a George Soro’s funded organization, under a FOIA request, the donor and membership details of 9 conservative Tea Party non-profit applicants who weren’t even halfway through the screening process. So please Mr. Author, please fancifully explain and deflect this agency’s conduct as to these contexts. Had the political parties been reversed – all hell would break loose rather than these somewhat banal investigations and discovery of half-truths in a drip drip drip manner.


  5. “Anonymous”? Really? Someone can’t even muster the gumption to tag his/her response, but gets to make a comment. This really is America. I, for one, have long believed the Catholic and Mormon churches have grossly violated the spirit and the letter of their tax exempt credentials. Let’s take ’em all to task: the TV evangelists, the Southern Baptists, the whole putrid lot of ’em. BTW: authors, bloggers, and educators who hide under the “Roman Catholic” banner with is obscene waelth, crooked banks, Mafia payola, and sheltered pedofile priests do not get to be described as “pristine”.


%d bloggers like this: