Ex-IRS Official: To Testify or Not to Testify?

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In 2013, pending the public release of an audit conducted by the Treasury Inspector General for Tax Administration, the Internal Revenue Service disclosed that through May of last year it had singled out political groups applying for tax-exempt status for closer scrutiny based on their names or political orientations.

On May 10, the director of the IRS Exempt Organizations division, Lois Lerner, answered what was later revealed to be a question planted by the agency at an American Bar Association conference in order to reveal that it had inappropriately targeted political groups ahead of the 2012 elections. She confirmed the IRS had taken “absolutely inappropriate” actions, for which the agency was “apologetic.” Shortly thereafter, the Federal Bureau of Investigation began examining the IRS’s actions as part of a criminal inquiry ordered by U.S. Attorney General Eric Holder.

Lerner — who was placed on administrative leave days after testifying to the House Oversight and Government Reform Committee that she had not broken any laws or agency regulations — is at the center of the controversy over the targeting of grassroots conservative and some liberal organizations. That same committee plans to call her as a witness at a public hearing on Wednesday, and Chairman Darrell Issa, a Republican representative from California, told Fox News on Sunday that she planned to testify even though she had invoked the Fifth Amendment at that May 22, 2013, hearing after giving an initial opening statement in which she professed innocence.

“Her attorney indicates now she will testify” and answer questions, he said. “We’ve been in back-and-forth negotiation, but quite frankly we believe that the evidence we’ve gathered causes her, in her best interest, to be someone who should testify.” He told Fox News the committee does not know what caused her to change her mind.

However, her lawyer, William Taylor III, told the Wall Street Journal in an email that Lerner once again planned to assert her Fifth Amendment protection right against self-incrimination. “Don’t know where he gets it,” Taylor said of Issa’s information.

Emails released by committee aides to the publication show that House of Representative lawmakers and Lerner’s attorney conducted negotiations for a possible agreement for her to testify in non-public deposition. But according to the documents, no final deal was made. “As a general practice, the Oversight Committee does not disclose discussions with representatives of private citizens about possible public testimony,” spokesman Fredrick Hill said to the Journal. “In the case of Ms. Lerner, correspondence is being made available to set the record straight on offers made by her attorney about her willingness to testify and answer questions without any grant of immunity.”

“Ms. Lerner’s testimony remains critical to the Committee’s investigation,” wrote Issa in a late February letter sent to the former IRS official’s attorneys.  “Documents and testimony obtained by the Committee show that she played a significant role in scrutinizing applications for tax exempt status from conservative organizations. Documents also show that Ms. Lerner participated in ‘off plan’ work to develop rules that would allow the IRS to stifle constitutionally protected political speech by non-profit groups. Ms. Lerner’s testimony will allow the Committee to better understand how and why the IRS targeted certain organizations.”

In her May 2013 testimony, Lerner said: “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.” But she shed no light on how and why the tax agency targeted certain organizations.

An audit by the Treasury Department shed slightly more light: “The IRS used inappropriate criteria that identified for review Tea Party and other organizations applying for tax-exempt status based upon their names or policy positions instead of indications of potential political campaign intervention,” according to the audit, released May 14, 2013. “Ineffective management: 1) allowed inappropriate criteria to be developed and stay in place for more than 18 months, 2) resulted in substantial delays in processing certain applications, and 3) allowed unnecessary information requests to be issued.”

Of course, the report compiled by Inspector General for Tax Administration showed that Lerner had been informed of the targeting at a meeting that she attended on June 29, 2011.

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