By DAVID MARTOSKO
The Los Angeles Times reported Tuesday afternoon that Lois Lerner, who heads up the Internal Revenue Service's tax-exempt division, plans to invoke the Fifth Amendment to the U.S. Constitution in a hearing Wednesday before the House Committee on Oversight and Government Affairs.
The Fifth Amendment provides that U.S. citizens may not be compelled to offer testimony if telling the truth would incriminate them.
Lerner's defense lawyer, William W. Taylor III, wrote to the committee on Tuesday that his client would refuse to answer questions related to what she knew about the extra levels of scrutiny applied to conservative nonprofit organizations that applied for tax-exempt status beginning in 2010.
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She also will decline to say why she didn’t disclose what she knew to Congress, according to the LA Times.
Lerner 'has not committed any crime or made any misrepresentation,' Taylor's letter read, 'but under the circumstances she has no choice but to take this course.'
He is asking the oversight committee to excuse Lerner from testifying, claiming that calling her in a congressional hearing would 'have no purpose other than to embarrass or burden her' since members would not expect her to answer questions.
Ahmad Ali, a committee spokesman, told MailOnline that 'Ms. Lerner remains under subpoena from Chairman Issa to appear at tomorrow's hearing - the Committee has a Constitutional obligation to conduct oversight.'
'Chairman [Darrel] Issa remains hopeful that she will ultimately decide to testify tomorrow about her knowledge of outrageous IRS targeting of Americans for their political beliefs.'
The IRS applied special criteria to conservative organizations seeking tax-exempt status, putting them on a 'Be On The Lookout' (BOLO) list, based on the groups' names and political philosophies.
President Barack Obama has said he was unaware of the program until May 10, when excerpts of an IRS Inspector General Report on the practice were leaked to reporters.
But Jay Carney, the president's chief spokesman, confirmed Monday that senior White House staff, including White House Counsel Kathy Ruemmler and Chief of Staff Denis McDonough, knew about the IRS's habits as early as April 24, and chose not to tell Obama.
The Inspector General report found that Lerner and other IRS were notified in or before June 2011 that some staff in the agency's Cincinnati, Ohio office were using 'tea party,' 'patriots' and other key words to add applicants to the BOLO list.
Once on that list, the groups were subjected to additional auditing of their financial practices, their membership and their political activities.
Despite knowing about the program, Lerner and other senior IRS staffers withheld the information from Congress despite receiving several requests from House committees whose members heard from constituents that their tea party groups' tax-exempt approvals were taking as long as two years to be resolved.
The House Oversight and Government Affairs Committee was among those that specifically asked the IRS whether it was inspecting tea party groups more closely than other applicants, including those on the political left.
Lerner herself launched her agency's scandal with a planted question-and-answer exchange during a May 10 American Bar Association conference.
Asked the pre-arranged question, Lerner responded by conceding that her employees had acted inappropriately.
'Instead of referring to the cases as advocacy cases, they actually used case names on this list,' she told the assembled tax lawyers.
'They used names like "tea party" or "Patriots," and they selected cases simply because the applications had those names in the title.That was wrong. That was absolutely incorrect, insensitive, and inappropriate — that’s not how we go about selecting cases for further review.'
She later claimed that the increase in scrutiny of tea party groups was due to an influx of new applications from right-wing organizations, following the Supreme Court's 'Citizens United' ruling, which opened the floodgates to greater political participation by nonprofit advocacy groups.
The Washington Post called that claim bogus, however, with the newspaper's fact checker awarding it a 'four Pinocchios' rating for dishonesty.
Lerner's boss, acting IRS commissioner Steven Miller, was relieved of his post by Treasury Secretary Jack Lew last week, although the term of his appointment to the job was already scheduled to end in early June.
Other higher-ups inside the IRS have not been publicly held accountable for the improper targeting of conservative organizations.
