Democrats defend IRS official's Constitutional rights to stay silent

Key Democrats say Internal Revenue Service official Lois Lerner didn't give up her Fifth Amendment rights against self-incrimination by giving an opening statement at a House hearing on Wednesday.

Democrats on the Oversight panel said they want Lerner to testify about the IRS’s targeting of conservative groups seeking tax-exempt status, and are not defending her decision to invoke the Fifth Amendment.

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But Lerner’s Constitutional rights are clear, the Democrats argue, and committee Chairman Darrell Issa (R-Calif.) will be wasting the panel’s time and resources waging a losing battle against her attorneys while the FBI conducts a criminal investigation into the scandal.

“I would like very much for her to testify, but she plead the Fifth Amendment and she has the Constitutional right to do so. I pledged my loyalty to the Constitution when I was sworn in,” said Rep. Carolyn Maloney (D-N.Y.).

“If Mr. Issa and his attorneys want to fight with her attorneys, that seems to be a sideshow to getting at the information,” she said.

The Democrats' position is a politically delicate one, as they are backing the Constitutional rights of an IRS official who is in the middle of a highly charged firestorm.

Lerner runs an IRS division that oversees tax-exempt groups, and she answered a planted question at an American Bar Association conference two weeks ago that first alerted the public to the controversy. Acting IRS Commissioner Danny Werfel asked her to resign on Thursday, but she refused to step down, according to congressional aides.

The veteran civil servant on Wednesday insisted she had broken no laws and had done nothing wrong in her opening statement before invoking the Fifth.

Some Democrats — including Sen. Carl Levin (D-Mich.) — have called for her to be suspended.

In backing Lerner’s right to plead the Fifth, Rep. Gerry Connolly (D-Va.) stressed Democrats were not backing the official, but her right to not talk. 

The language of the founding documents is on their side and Issa will severely damage his credibility if he tries to infringe on the Constitutional rights of an American before his committee, Connolly said.

“The Fifth Amendment is the Fifth Amendment, and it is not circumscribed by committee procedures,” said Connolly. “It is a Constitutional right. But I’m not defending her, I’m defending the Fifth Amendment.”

Issa recessed Wednesday's hearing — instead of adjourning it — so that his original subpoena of Lerner would remain enforceable.

On Thursday, he said his legal counsel had determined that Lerner waived her Fifth Amendment rights when she delivered an opening statement to the committee explaining that she had done nothing wrong.

Such a practice is not allowable in a court of law, but Democrats hold that the committee does not have the same rules as a courtroom and that a witness always has the right to invoke the Fifth Amendment.

Issa said he intends to bring Lerner back before the committee to ask her questions. That could spark a larger legal dispute if Issa decides to charge her with contempt of Congress for refusing to testify.

Rep. Tammy Duckworth (D-Ill.) said she hopes Lerner would testify, but that, under the Constitution she was not legally bound to.

“I don’t think she did [waive her rights],” Duckworth said . “She was exercising that right and I think the chairman did what he had to do [by excusing her]. It’s unfortunate that she wouldn’t testify. I don’t have a problem with having her back.”