Congress' Option on IRS: Testify or Lose Your Job

Lois Lerner is sworn in before testifying on Capitol Hill in 2013.
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Lois Lerner is sworn in before testifying on Capitol Hill in 2013.

Lois Lerner, the IRS official who headed the division that targeted Tea Party and other conservative groups for special tax scrutiny, invoked her Fifth Amendment right to refuse questions before Congress on Wednesday.

But that doesn't mean that she won't be forced to answer questions. In fact, it's relatively easy for Congress to force her to testify.

In general, Congress hates when government officials refuse to answer questions. This time, of course, it is especially those in the House's Republican majority who are unhappy.

Republican Darrell Issa, the chairman of the House Oversight Committee, required Lerner to come before the committee and invoke her Fifth Amendment in person at the hearing, rather than just letting her lawyer inform the committee that she's not going to answer their questions. That's not something you do to a witness you regard as friendly.

Her lawyer has said that requiring her to appear at the hearing served "no other purpose than to embarrass or burden her." That's half true. It certainly is a burden and an embarrassment to have to stand up in front of the nation and refuse to answer questions from elected representatives. Regardless of what the law says about this, a lot of ordinary folks think that only criminals fear self-incrimination.

But there's a broader purpose served by making her appear before the committee. Very often seeing public officials appear before Capitol Hill panels helps to focus public attention on government abuse—even when the public officials refuse to answer the questions put to them by lawmakers. Perhaps especially when the officials refuse to testify. Think of Oliver North refusing to testify before the Senate in 1986.

A lot of regular folks watching this unfold will wonder why the sons of guns who refuse to answer questions about possible government abuses cannot just be fired. The sophisticated folks among us tend to shake their heads, wondering why so many people don't understand that the Fifth Amendment right against self-incrimination includes a right not to be fired from a government job for refusing to testify. Threatening a government official's livelihood is just another form of compelling self-incrimination, the sophisticates say.

As is usually the case, however, the ordinary folks are closer to the truth than the sophisticates. Congress can require Lerner to choose between testifying and losing her job. But the cost of putting this choice to her is granting her immunity from any future prosecution based on what she says before Issa's committee.

"[The government] has every right to investigate allegations of misconduct, including criminal misconduct by its employees, and even to force them to answer questions pertinent to the investigation, but if it does that it must give them immunity from criminal prosecution on the basis of their answers," Judge Richard Posner explained in a 2002 case, Atwell v. Lisle Park District.

This is what happened when Oliver North invoked the Fifth Amendment in the Iran-Contra hearings. The Congressional investigating committees found the need for his testimony compelling enough that they granted him immunity from being prosecuted for the contents of his testimony and required him to appear before the committees.

The case for doing the same thing in the IRS case is pretty persuasive. Even if Lerner authorized the targeting of the Tea Party groups, there's a good deal of doubt that she could be criminally prosecuted for doing so. No federal statute that I'm aware of directly criminalizes that kind of behavior, and federal courts refuse to impose criminal penalties for just doing bad things that Congress hasn't specifically outlawed. So granting her immunity from prosecution might not actually involve giving anything up at all.

What's more, Lerner's testimony could be instrumental in understanding two things that are still murky about the IRS targeting scandal.

First, we need to know how deep this goes in the IRS. Is this conduct deeply ingrained in the organization? How many employees were involved? How many different offices? Was this a huge deviation from normal IRS activity or something that involved just inching over very blurry lines?

Second, more importantly, we need to know how high up this goes. Was Lerner the top official involved? Or were her superiors aware of what was happening? Did the IRS see itself as acting alone here or as part of a broader government effort to crack down on the tea-party groups?

Surely a better public understanding of how the IRS targeting program developed would be worth the price of granting Lerner immunity from prosecution for her answers to Congress.

Another advantage to granting Lerner immunity is that it might lead to evidence of actual criminal wrong-doing on the part of others in the IRS or elsewhere in the government. Lerner's immunity wouldn't extend to them and she cannot refuse to testify to avoid incriminating fellow IRS employees.

Lerner is not a big fish and whatever she might have done probably is not a federal crime anyway. If Issa and the GOP are serious about getting to the bottom of the IRS scandal, they should grant immunity and require testimony.

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