Rep. Darrell Issa’s (R-CA) Committee on House Oversight & Government Reform voted Thursday, along party lines, to recommend contempt charges against former Internal Revenue Service (IRS) official Lois Lerner. Here’s what you should know to understand the debate between the committee’s Democratic minority (who compared the move to McCarthyism) and a GOP majority convinced that Lerner “engaged in efforts to cover [up]” systematic targeting of Tea Party groups by subordinates.
The IRS improperly targeted some non-profit applicants.
Last year, the IRS acknowledged that it had improperly flagged groups applying for tax-exempt status for additional scrutiny if they contained common Tea Party keywords in their applications. Rather than addressing the very real problem of political committees masquerading as 501(c)(4) groups to evade public disclosure laws, this approach instead delayed the process for several groups purely on the basis of their names. Evidence indicates that progressive-sounding keywords were also on some of the “be on the lookout” lists as well, though the Republican majority disputes whether any progressive groups were actually targeted. President Obama and members of both parties in Congress all agree that the IRS acted improperly in singling-out certain groups for more scrutiny than others.
Lerner’s subordinates created the lists of keywords for which organizations applying for tax-exempt status would be subject to additional scrutiny. Last year, after an inspector general discovered these lists, Lerner called them “absolutely inappropriate” actions by “front-line people.” The Oversight majority report suggests she was aware of and involved with in the targeting, though she has consistently denied wrongdoing.
IRS official Lois Lerner came to Congress and it did not go well.
In 2005, Republican President George W. Bush’s IRS Commissioner appointed Lerner to be the director of the agency’s Exempt Organizations Division. Former colleagues described her as an apolitical career public servant, though citing her criticisms of the Citizens United ruling, Issa’s committee report concluded that her “left-leaning politics were known and recognized.”
In May of 2013, Lerner appeared before the Oversight committee, under subpoena. After making a brief statement asserting her innocence, Lerner told Issa, that she would follow her lawyer’s advice and “not testify or answer any of the questions today.” Though she invoked her Fifth Amendment right against self-incrimination, Rep. Trey Gowdy (R-SC) objected to this, arguing that because she began with a statement of innocence, she “waived her Fifth Amendment right to privilege.” Issa excused Lerner and vowed to “seek specific counsel on the questions of whether or not the constitutional right of the Fifth Amendment has been properly waived.”
A day later, Lerner was placed on administrative leave. In September, she announced her retirement. Though her lawyer offered to have Lerner testify, if granted immunity, Issa apparently rejected this offer.
Instead, the committee voted last June (along party lines) to determine that Lerner had waived her Fifth Amendment rights and that she was compelled to testify and, last month, recalled Lerner to appear again. When she again asserted her Fifth Amendment rights and refused to testify, Issa angrily adjourned the hearing, without explicitly compelling Lerner to respond.
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Issa refused to grant Lerner immunity for her testimony.
Like in court proceedings, Congress has the statutory authority to grant immunity to a witness who invokes the Fifth Amendment. By a majority vote, the House or Senate can force a witness to testify — allowing Congress to receive important evidence and protecting the witness from prosecution for the details revealed in his or her truthful testimony. Though some have argued that this rule violates the separation of powers established in the U.S. constitution, it has been used multiple times in the past. Indeed in 2007, a former aide to Bush Attorney General Alberto Gonzales named Monica Goodling, was forced by the federal courts to testify about the administration’s firing of U.S. attorneys, after she was granted immunity from prosecution.
As Issa adjourned the initial hearing in May 2013, he noted that he would consult with the Department of Justice about a possible immunity deal for Lerner. But though Lerner’s lawyer embraced such an agreement, Issa and the Oversight Republicans did not opt to go that route. Thursday morning, Issa told the committee, “I’m not going to support immunity so Ms. Lerner can continue to mislead this committee,” adding, “If she really did nothing wrong, she doesn’t need immunity.” Of course, invoking the Fifth Amendment does not necessarily imply guilt — it merely indicates that the witness has reason to be concerned that an answer might be used against him or her.
Though Issa claimed at the hearing, “We are here today for one fundamental reason: to get to the full truth about IRS targeting,” he opted to push a contempt resolution rather than grant immunity and thus obtain Lerner’s testimony at any time over the past year.
Republicans say Lerner is in contempt of Congress.
Thursday’s committee contempt hearing turned into a partisan debate on whether to pass a resolution finding that Lerner “offered a voluntary statement in testimony before the Committee, was found by the Committee to have waived her Fifth Amendment Privilege, was informed of the Committee’s decision of waiver, and continued to refuse to testify before the Committee,” and thus is in contempt of Congress for failure to comply with a congressional subpoena.” If passed by the full House of Representatives, it would refer the case against Lerner to the U.S. Attorney for the District of Columbia for possible prosecution and direct the Speaker of the House to “take all action to enforce the subpoena.”
While in theory, a person found in contempt of Congress can be subject to a $1,000 fine and 12-month imprisonment, the Department of Justice rarely prosecutes such cases. Additionally, the Speaker’s enforcement power could include having the House sergeant-at-arms arrest and imprison the person found in contempt, this option has not be utilized in many years. Indeed little has happened since the House voted to hold Attorney General Eric Holder in contempt of Congress over his refusal to turn over documents relating to the Fast and Furious operation.
Democrats say the GOP is just playing “gotcha.”
While Democrats and Republicans both expressed frustration about Lerner’s refusal to testify, committee Democrats pointed Thursday to 25 legal experts who argued that because adjourning the March hearing abruptly, without explicitly ordering her to testify or face contempt, the legal underpinning necessary for a contempt charge were not present. Morton Rosenberg, a fellow at the Constitution Project, wrote that while Issa said “if she continues to refuse to answer questions from Members while under subpoena, the Committee may proceed to consider whether she will be held in contempt,” he released Lerner without demanding an answer, expressly overruling her claim of privilege, or clearly telling her that her refusal to answer would result in a criminal contempt prosecution. As such, Rosenberg observed, the courts would likely dismiss the contempt claim. Georgetown University Law Center Professor Joshua Levy agreed, observing that contempt “cannot be born from a game of gotcha.”
Rep. Elijiah Cummings (D-MD), the ranking minority member of the Oversight Committee, also pointed to a report by the non-partisan Congressional Research Service finding no examples of a contempt charge being upheld in court under similar circumstances.
The Department of Justice will continue to investigate.
The Department of Justice launched its own, still on-going, investigation last May into the improper IRS targeting of non-profit applicants. Issa and other Republicans have objected to the department’s selection of attorney Barbara Bosserman to lead that probe, as she has previously made political contributions to Democrats.
On Wednesday, the House Ways and Means Committee voted to encourage Attorney General Holder to investigate against Lerner for “willful misconduct” that “may have violated multiple criminal statutes.” The committee’s Democrats opposed the public release of the referral, noting that the report itself made public “previously protected taxpayer information.”