Lois Lerner, director of the IRS Exempts Division while the IRS was treating conservative groups with the same even-handedness displayed by a group of foxes debating the rights of chickens, took the Fifth Amendment, the privilege against self incrimination, before Congress last week. She did it in an odd way, first making a self serving statement and then taking the Fifth. I found that passing strange as what is drummed into most defense attorneys about the Fifth Amendment is that you have your client assert the privilege and say absolutely nothing else. The reason for this is that there is ample case law in criminal cases where defendants have inadvertently waived the privilege because they couldn’t resist the temptation to shoot their mouths off instead of simply asserting the privilege. As far as I know there is no case law about whether you can waive your Fifth Amendment privilege before Congress by doing so, but a cautious defense attorney would have warned her strenuously against making the “I didn’t do nothin'” opening statement. I assume that she either got bad legal advice or she got good advice and chose to ignore it.
Of course the atmospherics of Lerner taking the Fifth is disastrous for Lerner and her political string pullers at the White House. Most people come into contact with the Fifth Amendment when they see video of some gangster asserting the privilege. Although a court of law or a jury may construe nothing from the assertion of the Fifth Amendment, people who are not judges or serving on juries are perfectly free to make the reasonable assumption that someone would assert the privilege against self-incrimination only when they had good reason to believe they had violated the law.
As she goes under the bus, Lerner perhaps is pondering how she got there. The explanation for that is simple: she was a useful tool for the Obama White House in its desperate drive beginning in 2010 to slow the momentum of the Tea Party, a momentum that in 2010 gave the Republicans historic victories in the midterm election and was a mortal threat to the re-election of Obama in 2012. The IRS was thus a key component in the reelection strategy of Obama by stopping the formation of tax exempt tea party groups and harassing those trying to organize such groups.
In Lerner, the men and women who pulled her strings at the White House found a willing accomplice. During the Clinton administration, when she was head of the enforcement division of the Federal Election Commission, Lerner developed a well-earned reputation for targeting Republican and conservative groups: