Fifth Amendment Rights and immunity from prosecution are on a collision course in the IRS probe now before the House of Representatives. At issue is whether a witness before a Congressional committee can be forced to testify after having previously cited the Fifth Amendment protection against self-incrimination.
These issues came to a head today in a meeting of the House Oversight and Government Reform Committee when former IRS employee Lois Lerner was called back to testify about the alleged targeting of conservative nonprofit groups applying for tax exemptions for extra scrutiny.
Ms., Lerner declined to testify on grounds that her testimony might violate her constitutional rights against self-incrimination, and Committee chairman, Rep. Darrell Issa (R-CA), decided to adjourn in the absence of an agreement to testify from Ms. Lerner. This triggered a confrontation between Issa and Rep. Elijah Cummings (D-MD), the ranking Democrat on the committee, who wished to be heard on the matter. Cummings has been critical of Issa’s handling of matters before the Committee and this particular case has been characterized as a “witch hunt,” something for which the publicity-hungry Issa is known.
“Pleading the Fifth” is a long-standing right that prevents the government from compelling citizens to testify against themselves. Most people today no longer realize, however, that the Fifth Amendment was written into the Constitution by men who had personal experience with the use of torture to extract information from enemy combatants during the Revolutionary War. Today, the torture may be psychological, but no less real. Being called upon to testify by a Congressional committee in the full glare of the attendant publicity is unpleasant. Having to hire very high-priced legal counsel is really unpleasant.
Lerner refused to answer questions about the targeting allegations during her previous appearance before the Committee, citing her Fifth Amendment right not to testify against herself in May of 2013. Fox News reported yesterday that Lerner’s attorneys were negotiating with the Committee’s lawyers offering to testify in exchange for immunity from prosecution.
Lerner offered to give a private deposition rather than appearing before the Committee in public if the Committee granted her immunity from prosecution on charges stemming from her testimony. The Committee’s Republican members rejected that offer on the grounds that she had made a statement during her previous appearance before the Committee, invaliding her Fifth Amendment privileges.
Lerner’s role as head of the IRS division that grants and monitors tax exemptions for nonprofit organizations required her to do two things, document that the nonprofit organization’s charter precluded the organization from excessive political activity on behalf of a particular party or candidate, and investigate organizations that appeared to be in violation of the requirement that tax exempt organizations refrain from prohibited activities. The organizations in question are those operating under the IRS 501(c)4 of the IRS Code, which permits Social Welfare organizations to lobby on behalf of causes related to their missions without losing their tax exempt status. The litmus test used by the IRS has traditionally been that lobbying or political activity costs should not exceed 49 percent of the organization’s annual operating costs.
Committee Chairman Donald Issa (R-CA) has been keeping the Obama administration’s feet to the fire on this issue since the story first broke on the grounds that the IRS had unfairly targeted conservative groups in an attempt to impede their operations in the aftermath of the Citizens United decision by the Supreme Court. An investigation by the Justice Department later determined that the IRS investigations targeted both conservative and liberal organization and, although a larger number of conservative organizations were investigated, the only organization to lose its tax exemption turned out to be a liberal group called Emerge America, which trains Democratic women to run for public office.
The fuss over the IRS investigations was centered around the belief that the increased scrutiny of tax-exempt organizations was triggered by the Citizens United decision. Under Citizens United, the Court held that donors did not have to disclose how much they were giving or who they were giving it to. The category of tax exempt organizations that the IRS investigated were all 501(c)4 organizations which, unlike 501(c)3 organizations, do not have to disclose the identities of their contributors.
Together, the Citizens United decision and the 501(c)4 liberal rules regarding contributor identification created a backdoor through which wealthy contributors could make blind donations to their favorite causes without attaching their names to the gifts, which circumvents campaign finance laws.
In the original reporting on this story, conservative commentators were incensed by the fact that the IRS investigated organizations with words like “Tea Party” or “Patriot” in the names, but the FBI found that the IRS had researched organizations with names like “Progressive”in their monikers.
The fact that Lerner made an opening statement during her previous appearance before the committee admitting that some conservative groups had been unfairly targeted has been cited by the Committee’s attorneys as a tacit agreement to waive immunity. Under the law, however, a witness called before a court, or Congress, for that matter, can make statements and answer questions until he or she invokes the Fifth Amendment. Statements made before “taking the 5th” remain admissible, but a witness can only be compelled to testify if they make any additional statements after they have “invoked,” which Ms. Lerner has not done.
The “Fifth Amendment” argument hinged upon whether or not there was an open criminal investigation that could result in charges being filed against Lerner. Ironically, Lerner’s admissions have since been contradicted by a subsequent FBI investigatios indicating that they did not find substantial bias in the manner in which Ms. Lerner department followed her instructions.
When Fifth Amendment rights are given up in exchange for immunity from prosecution, it may be that the witness has something to hide….but it also often means that the testimony being given is questionable since granting immunity means the government cannot turn around and charge the same witness with perjury.
By Alan M. Milner