Charles Krauthammer Flip-Flops On The Fifth

Fox News contributor and Washington Post columnist Charles Krauthammer attacked IRS official Lois Lerner for planning to invoke the Fifth Amendment during congressional hearings on IRS scrutiny of conservative groups, a change from his previous support for a Bush administration official doing the same.

A May 21 Los Angeles Times article reported that Lerner, "[a] top IRS official in the division that reviews nonprofit groups," will invoke her Fifth Amendment rights and not testify before the House Oversight Committee due to an ongoing criminal investigation and to avoid possible self-incrimination.

On Fox News' The O'Reilly Factor, Krauthammer responded to host Bill O'Reilly's claim that Lerner's invoking the Fifth Amendment was evidence that the IRS controversy “was really building,”  saying that it was not unreasonable to infer that her decision was evidence “that there is a lot [the Obama administration has]got to hide and they are very worried.”

But Krauthammer's claims conflict with statements he made during the George W. Bush administration. In a March 9, 2007 column, Krauthammer declared that invoking the Fifth Amendment was former Bush White House Chief of Staff Scooter Libby's right. Krauthammer seemingly defended Libby, claiming that the controversy around the reveal of former CIA agent Valerie Plame's identity was a case of “memory lapses,”  casting doubt on the testimony of former NBC host Tim Russert, and dismissing the potential criminality of Libby's action:

This demonstration of Russert's fallibility was never shown to the jury. The judge did not allow it. He was upset with the defense because it would not put Libby on the stand -- his perfect Fifth Amendment right -- after hinting in the opening statement that it might. He therefore denied the defense a straightforward demonstration of the fallibility of the witness whose testimony was most decisive.

Toensing thinks this might be the basis for overturning the verdict upon appeal. I hope so. This is a case that never should have been brought, originating in the scandal that never was, in search of a crime -- violation of the Intelligence Identities Protection Act -- that even the prosecutor never alleged. That's the basis for a presidential pardon. It should have been granted long before this egregious case came to trial. It should be granted now without any further delay.

Krauthammer's insinuation also differs from other Fox host claims. About two hours after Krauthammer's O'Reilly Factor appearance, On the Record host Greta Van Susteren - who holds a law degree from Georgetown University - asserted in an interview with House Oversight Committee Chairman Darrell Issa (R-CA) that she would advise Lerner to invoke the Fifth Amendment because the Department of Justice opened a criminal investigation into the IRS's undue scrutinizing of conservative group tax statuses:

VAN SUSTEREN: You're not going to get them tomorrow because we understand that she will be taking the Fifth Amendment when she appears before your committee.

ISSA: Well she's an important witness. And we still hold out hope that she will change her mind. Often, as you know, people don't always listen to their attorneys. And in this case, she's critical to the conduit between commissioners and other individuals and the actual places where so much was known.

VAN SUSTEREN: You know, I actually, if I were her lawyer, I'd advise her to take the fifth too, because there is the Justice Department has opened a criminal investigation and she does -- I mean, there is a risk that she says something tomorrow.