In a letter addressed to the Honorable House Speaker John Boehner , the U.S. Attorney Ronald Machen Jr. advised that after referring the contempt accusations to a team of experienced prosecutors, the Department of Justice has decided that it will not bring Lerner to the grand jury. This comes after her refusal to testify on March 5, 2014, in front of the House Committee on Oversight and Government Reform.
Apparently, this opinion oversight would leave the embattled former IRS head of the tax-exempt department out of the investigator’s scrutiny. The IRS scandal originated with suspicions that the institution has been targeting conservative tea-party organizations. Lerner is at the epicenter of the investigation. As the shepherd of the tax-exemptions department of the IRS, she is believed to have abused her prerogatives for political purposes. On Wednesday, May 22, 2013, Lerner appeared before the House Committee on Oversight and Government Reform, pledging her innocence in any presumed wrongdoing, and refuting the accusations brought against her.
In a January 2014 Congressional hearing, IRS Commissioner John Koskinen admitted to have destroyed a key hard drive in the investigation. And according to the record, Koskinen refused to apologize as he considered no valuable data was lost. The hearing focused on the allegations that the hard drive of Lerner crashed in 2011. But an email dated June 29, 2011, sent by Lerner, may suggest that what was intended to look as a hard drive crash might have been a deliberate action of hiding evidence and obstructing justice.
After repeated hearings under oath, Lerner claimed that the data on the crashed hard drive was not retrievable. In February of this year, the Treasury Inspector General for Tax Administration (TIGTA) testified to the House Committee on Oversight and Government Reform that 33,000 new unique emails had been tracked down from the ex-IRS’s official account. The watchdog agency found the emails on backup tapes after consulting with the IRS information technology specialists, according to the TIGTA Deputy Inspector General for Investigations, Tim Camus.
Pleading her Fifth Amendment rights, the IRS ex-official refused to testify. Nevertheless, the House Committee informed Lerner that on May 22, 2013, she had waived her Fifth Amendment Right when she voluntarily made an opening statement. Following her refusal to testify, the House then voted to hold Lerner in contempt against Congress, under 2 U.S.C. , section 192. The letter of the U.S. Attorney to the House Speaker John Boehner emphasizes on the fact that appearing before the House Committee on May 22, 2013 was not legally waiving the Fifth Amendment rights, thus this providing an absolute defense against the section 192, justifying their decision not to prosecute Lois Lerner for criminal contempt.
What is even more interesting, is that section 192 of the United States Code states that a witness who willingly refuses to testify and produce papers can be charged with contempt. The new email discovery, and their subsequent content could lead to the Congress finding Lerner guilty of contempt and obstruction of justice.
The ramrod of the proceedings might have made the Department of Justice (DOJ) lose sight of the fact that Lerner is not just a witness, as she could be actually charged with hiding important evidence in an ongoing criminal investigation. As the investigations continue, there appears to be another aspect that both Congress and the DOJ may overlook. The more the constitutional frame tightens, the less constitutional prerogatives has the U.S. Attorney in these regards. Ultimately, the Supreme Court may end up making the final decision on the Fifth Amendment rights issue. Even if the U.S. Attorney has decided not to prosecute Lerner, the Congress may be willing to take the next step to the Supreme Court. The Department of Justice may also be interested in finding a legal option to enable the prosecution of Lerner and the IRS chief for perjury or obstructing justice.
The Department of State and the Department of the Treasury, have forced a shutdown of the IRS offices overseas, without an explanation, effective today, April 2, 2015. The moored focused attention on the decision itself of not finding Lerner guilty with contempt and let her go away might derail from the real issue at stake, the content of the emails discovered by the IRS watchdog. Under these circumstances, the bemoaned DOJ looks like itself is politically targeting and making decisions, and this could become more obvious as the investigation unfolds.
By Adrian Nita