Tag Archives: freedom

Did Lois Lerner Waive Her 5th Amendment Right?

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At the start of her testimony before the House Oversight and Government Reform Committee, Lois Lerner, the head of the IRS facility that ran the targeting of government-disfavored Americans and groups of Americans, made a brief statement, asserted her 5th Amendment right not to testify against herself, and then refused to testify further.  Lerner said, in her statement,

On May 14th, the Treasury inspector general released a report finding that the Exempt Organizations field office in Cincinnati, Ohio used inappropriate criteria to identify for further review applications from organizations that planned to engage in political activity, which may mean that they did not qualify for tax exemption.

On that same day, the Department of Justice launched an investigation into the matters described in the inspector general’s report.  In addition, members of this committee have accused me of providing false information when I responded to questions about the IRS processing of applications for tax exemption.

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.

The bulk of the rest of her testimony was a statement that her counsel had advised her to plead the fifth, and she was doing so.

The Volokh Conspiracy (the above link) polled a number of professors with criminal procedure expertise on the question, including a bunch who were experts on the 5th Amendment in particular; their collected response was summarized thusly:

Opinions were somewhat mixed, but I think it’s fair to say that the bulk of responders thought that Lerner had not actually testified because she gave no statements about the facts of what happened.  If that view is right, Lerner successfully invoked her 5th Amendment rights and cannot be called again.  But this was not a unanimous view, it was not based on the full transcript, and there are no cases that seem to be directly on point.  So it’s at least a somewhat open question.

I’m not a lawyer, nor do I play one on the radio.  However, I disagree with these guys.  One of the things on which Lerner stands accused, as she acknowledged in her statement, is giving false testimony.  Her statement that she did not provide false information is an explicit statement about a fact of what happened under that accusation; it seems to me that she waived her 5th Amendment right in this area.

Furthermore, her broader statement of having “not done anything wrong…” in the context of her prior statements, which tie this claim explicitly and exclusively to the subject of that hearing, strikes me also as a statement about the facts of what happened under the implied accusations, and so again she seems to have waived her right—this time broadly so, concerning all of the subjects of the hearing.  This statement isn’t even akin to a plea of “not guilty;” it’s a statement of “I didn’t do the things related to this case about which you intend to question me.”  A “not guilty” plea is only a statement that the accuser cannot prove his case—which is all a not guilty verdict means: the state did not prove its case.

An Outcome of Big Government

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The proper lessons of the unfolding IRS scandal are twofold.  First, any effort to have the IRS police advocacy activities of social-welfare organizations is bound to be clumsy and prone to degenerate into either selective or broad witch hunts.  Second, the remedy is not to further limit political speech by nonprofit entities—which would certainly raise significant constitutional issues—but to encourage such speech by imposing fewer restrictions.

That combines with this:

There are two valid takeaways from the IRS scandal [and the other scandals: AP; Benghazi; Sebelius’ HHS “fund-raising” for Federal government’s health exchanges, just exposed this year].  First, it confirms that big government, whose power Obama is bent on expanding, cannot be trusted to behave properly.  Second, it calls for further investigation to determine how high up the chain the wrongdoing extends and whether the administration acted promptly to stop the targeting once it learned of that activity.

The need for an investigation and the firing of miscreants and subsequent jailing of those miscreants whose behavior was criminal certainly is warranted.  However, the IRS’ unconscionable behavior, and the Obama administration’s behavior vis-à-vis the other…scandals…, aren’t unique to the Obama administration.  These are the inevitable outcomes of Big Government, even when that government acts with the best of intentions.

Our Federal government needs to be drastically shrunk in size and scope, returning it to the small, limited, and so controllable, entity that it was designed to be.

A first step in this, in the present context, would be to do away with the distinction between 501(c)(3) and 501(c)(4) organizations—the legal distinction is wholly artificial and without meaning, anyway.  All entities engaged in otherwise tax exempt activities must be able to engage in some political activity.  That’s at the core of the speech clauses of the 1st Amendment:

Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

There’s nothing in there about “except for when individual Americans or groups of them peaceably assembled are doing certain government-identified things.”

Subsequently, reform the tax code altogether to a single low, flat tax and thereby eliminate the need for tax exempt status for any organization.

Political Corruption, Big Government, and Generational Struggle

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Government, by its nature, is vulnerable to a broad reach of failure, and that becomes increasingly difficult to correct as government’s size grows and corruption, or even mere arrogance, increases.  Ultimately, government becomes large enough that it deems itself no longer responsible to the people who created it, and it engages in activities for its own benefit instead of ours.  Finally, these activities become centered simply on preserving and expanding its own power—which fosters corruption, which fosters further self-preservation and growth, which….

Here are some recent and current examples:

  • The Community Reinvestment Act and refusals to reform it, which created the conditions for the housing bubble and subsequent collapse.
  • Fast and Furious, DoJ’s gunwalking scam.
  • The method by which Obamacare was enacted, and its enactment against the loudly expressed wishes of the American people.
  • DoJ’s selective prosecution of crime, refusing for instance to prosecute voter intimidation crimes unless the alleged victim was from a government-favored group and the alleged perpetrator(s) from a government-disfavored group.
  • DoJ’s use of disparate impact analysis to manufacture racial discrimination where none exists and solely to satisfy a government’s politically motivated goal.
  • The process surrounding the stifling of the Keystone XL pipeline by the White House.
  • DoJ’s secret seizure of press telephone records (the AP, for instance) in New York, Washington, Hartford, and the main office for AP reporters in the House of Representatives press gallery.
  • The cover-up of the government’s preparation for and response to the terrorist attack on our Consulate in Benghazi.
  • The politicization of the IRS, and its use to persecute government-disfavored groups and men.
  • Labor Department’s selective enforcement of laws regarding the killing of members of protected bird species, including the refusal to prosecute wind energy farms that kill over 80,000 hunting birds per year.

And so on.  This kind of thing isn’t unique to big government, of course; any time men are placed in power over men—a necessity even of consensual governments—the potential for arrogance or corruption abounds.  However, small consensual governments, inherently limited in power—formally by a constitution, and practically by a vigilant and involved population—are easier to control, and the growth of corruption and arrogance much more hindered.

It’ll be a long, cross-generational struggle to restore our government and to repair the damage done these last 80 years.  It’s a struggle that must be engaged, however.

IRS and Politics

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Recall that in the last election season, the Internal Revenue Service demanded of a number of nonprofit organizations information about the nature of their politics, who their contributors were, even asking about family members.  The IRS intended to use this information to challenge the organizations’ nonprofit status.  That this was a biased request is demonstrated by the fact that only conservative nonprofits were targeted, and they were targeted on the basis of the presence of terms like “patriot” and “tea party” in their organizational names.

The then-IRS commissioner, of course, denied this.  Douglas Shulman told Congress in March 2012,

There’s absolutely no targeting.  This is the kind of back and forth that happens to people….

Turns out he was lying.  Lois Lerner, head of the IRS division that oversees tax-exempt groups, said,

That [demand] was wrong.  That was absolutely incorrect, it was insensitive, and it was inappropriate.  That’s not how we go about selecting cases for further review[.]

Then she said,

The IRS would like to apologize for that[.]

Well, Madam, when will the IRS apologize for that, instead of just talk about wanting to?  And what assurances are you or Steven Miller, the acting IRS Commissioner, going to provide that guarantee this politicization of the IRS’ function has been erased and will not recur?  When will we see IRS action on these assurances?

This…behavior…makes me wonder if David Axelrod has gone to work for the IRS.  Or whether Janet Napolitano, DHS Secretary, is directing the IRS’ oversight function.

A Thought on Privacy

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Mayor Michael Bloomberg, in an absolutely awesome expression of governmental hubris, says that New Yorkers should just “get used to” the city’s rapidly proliferating surveillance cameras.

You wait, in five years, the technology is getting better, they’ll be cameras everyplace…whether you like it or not[.]

Amazingly, Federal Judge Richard Posner agrees.

Obviously, surveillance cameras didn’t prevent the Boston Marathon attacks.  But they may well have prevented further attacks planned by the bombers, including whatever destruction they may have attempted to cause in New York City.  Moreover, the criticism ignores deterrence.  By increasing the likelihood that terrorists or other criminals will be apprehended, surveillance cameras increase the expected cost of punishment.  That will not deter all attacks, but it will deter many.

Surveillance cameras also can be expected to increase the cost—and difficulty—of maintaining individual freedoms in the face of a constantly snooping government.  But surveillance cameras are of a piece with the lockdown imposed on Boston during the recent manhunt.

Ben Franklin was right.  Posner and Bloomberg are wrong.  But the latter plainly are speaking from the perspective of government and not from the perspective of government’s employers.