Tea Party groups won a major victory last week, when Judge Susan J. Dlott of the United States District Court for the Southern District of Ohio certified a class of Tea Party organizations that allege the IRS intentionally delayed their applications for preferential tax treatment based on their political viewpoints.
Winning class certification in NorCal Tea Party Patriots v. Internal Revenue Service is a big deal, because it means the Court has already made several determinations, all of which favor the class. The Court has determined that the number of Tea Party groups effected by the IRS’s alleged behavior is so numerous that they can proceed together as a class. The Court has also determined that all of the Tea Party groups have valid legal claims against the IRS which share common legal issues; in other words, that the IRS has treated them all the same way.
Having survived the hazardous class certification step, the Plaintiffs will now get substantive discovery from the IRS and from third parties. As the Washington Times summarized:
Now that the class has been certified, the case moves to the discovery stage, where the tea party groups’ lawyers will ask for all of the agency’s documents related to the targeting and will depose IRS employees about their actions. . . .[Plaintiff’s counsel] said he hopes former IRS senior executive Lois G. Lerner will be one of the employees he deposes in the case.Ms. Lerner was at the center of the targeting, and was the one who revealed the scandal after she planted a question at a forum.She refused to talk to Congress, asserting her Fifth Amendment right against self-incrimination. The House held her in contempt of Congress, but the Obama administration refused to pursue the case.
Plaintiffs should be able to obtain vast amounts of documentation regarding their own applications to the IRS, as well as documents pertaining to other politically motivated organizations that applied for favorable tax status in the same time frame. For instance, if Tea Party organizations’ applications took three times as long as identical green party or Democratic organizations, that would be evidence of targeting.
Ms. Lerner’s deposition, assuming Plaintiffs are able to take it, will be a blockbuster. Ms. Lerner, of course, was the senior-most identified IRS official with knowledge and apparent participation in slow-rolling IRS applications. She would be entitled to assert her 5th Amendment right against self-incrimination, but only for questions that could lead to criminal penalties against her.
A subpoena to appear for deposition can also include a request for documents. This is called a subpoena duces tecum. In a very limited set of circumstances, production of documents can raise Fifth Amendment issues, but it is rare and not obviously applicable here. This means that any email correspondence to or from Ms. Lerner regarding Tea Party groups should be discoverable.
In addition, a jury is entitled to make a negative inference against a party asserting his or her Fifth Amendment rights in a civil suit. That is, Ms. Lerner or anyone else appearing on behalf of the IRS could assert his or her Fifth Amendment rights, but the jury would be entitled to assume he or she is doing so because the answer would be incriminating. If the IRS refused to answer the question “did you delay Tea Party applications?” the jury would be entitled to infer that the deponent or witness is refusing to answer the question because the IRS did in fact delay Tea Party applications.
In a criminal case, the jury is forbidden from drawing any negative inference from a witness’s assertion of his or her Fifth Amendment rights.
In short, Ms. Lerner can repeat her despicable performance before Congress, and continue to stonewall the search for what exactly happened at the IRS, why, and on who’s orders, but she may well suffer personal repercussions now that she was able to evade in Congress’s hearings (with the assistance of a complacent and complicit Department of Justice).
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