Judge Susan J. Dlott in the Southern District of Ohio certified a class action suit against the IRS by Tea Party groups, whose freedom of speech was shut down by the IRS for the 2012 elections and some groups that will also not be able to participate in the 2016 election, although that is a suit that cannot be filed until actual damage is done. The courts would consider that case not to be “ripe” at this time.
This creates some interesting scenarios. In discovery, witnesses will be deposed by the opposition’s counsel. In those depositions, witnesses can plead the Fifth against self incrimination, but counsel can ask the judge to compel a witness to answer if the judge determines that the refusal to testify doesn’t really put the witness in danger. In the case of Lois Lerner and some of the other managers at the IRS there is no doubt testifying could put them in legal jeopardy.
However, a civil suit has a lower bar than a criminal one. In state courts during a civil suit, the decision does not have to be unanimous, but in a federal court it does. The thing is a criminal case must be beyond a reasonable doubt, but in a civil suit, it is based on the “preponderance of the evidence.” In other words, it must be more likely that a crime was committed than not. In a criminal trial you need all jurors to be 100% positive with no doubt. In a civil trial, you can have 49.5% doubt and plaintiff wins.
That means in a civil suit, lawyers can put Lerner on the stand and the lawyer for the plaintiffs can ask an unlimited number of questions and the taking of the Fifth can be taken into account in a civil suit. A half a dozen witnesses all taking the Fifth would look mighty suspicious to any jury.
The IRS has argued that they did nothing wrong and that the plaintiffs had no case, but in certifying the class action suit, the judge is basically saying that the IRS treated the over 200 Tea Party groups the same way. The hearing will decide if the actions of the IRS are actionable, but evidently the judge sees it that way. The judge’s ruling is based on her belief that Tea party groups were singled out for gaining tax exempt status.
The case now goes to the discovery phase, which will likely take quite a while considering the scope of the targeting.