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What’s More Important To the House GOP, The Constitution Or A Partisan Political Scandal?

Lois Lerner

The House Government Oversight Committee will reportedly consider next week whether to hold Lois Lerner, who headed the office at the center of the targeting investigation that has been going on for nearly a year now, in contempt of Congress for refusing to testify before the Committee:

(CNN) – The House Oversight Committee plans to vote next Thursday on whether to hold a former Internal Revenue Service official in contempt of Congress for refusing to testify about the agency’s alleged targeting of conservative groups seeking tax-exempt status, its chairman, U.S. Rep. Darrell Issa, said.

The official is Lois Lerner, the former IRS director of tax-exempt organizations, Lerner retired last year after being placed on administrative leave by the IRS after she said the IRS applied extra scrutiny to both conservative and liberal political groups seeking tax-exempt status between 2010 and 2012.

“Documents and testimony point to Lois Lerner as a senior IRS official responsible for conduct that deprived Americans of their rights to free speech and equal protection under our laws,” said Issa. “Americans expect accountability and want Congress to do all it can to gather relevant evidence about what occurred and who was responsible so that this never happens again.

As you will probably recall, Lerner refused to answer questions pursuant to the right against self-incrimination set forth in the Fifth Amendment when she was first brought before the Committee in May, and then again when the Committee recalled her just last month. At the time of her initial appearance before the committee last year, Lerner read a rather generic opening statement in which she denied that she had done anything wrong without speaking directly about any of the allegations regarding the targeting issue. When that happened, several Republican members of the committee asserted that she had waived her rights under the Fifth Amendment, an argument that most legal scholars have rejected. For her part, Lerner has made clear through her attorney that she would be willing to testify before the committee if she were granted immunity but there has been no movement in that direction, at least not in public.

Given the partisan makeup of the committee, it seems a foregone conclusion that Lerner will indeed be held in contempt next week. From there, the matter would go to the full House, which would have to vote to hold her in contempt of the House of Representatives in the same manner that they did with Attorney General Eric Holder in connection with a dispute regarding documents subpoenaed during the investigation of the “Fast & Furious” operation. At that point, the House would need to instruct its counsel to take the matter to a Federal Judge in the District of Columbia to rule on the matter. In theory, the House could direct the Sargent-At-Arms to arrest Lerner and put in her in jail under the House’s own authority but that’s a tactic that hasn’t been used in a long time and it seems highly unlikely that the GOP leadership would take that route.

Whatever procedure the House follows, though, eventually there would have to be a ruling on whether or not Lerner did indeed waive her Fifth Amendment rights. As I stated last year, it’s not very plausible that any Federal Judge is going to rule that Lerner’s brief statement to a Congressional Committee that she was before due to a subpoena constituted a waiver of her rights against self-incrimination:

Given that it’s an open question, it seems highly unlikely to me that a Federal Judge is going to rule that Lerner waived her Fifth Amendment rights in any respect by making a brief, entirely generalized, statement to a Congressional Committee at a hearing to which she was subpoenaed before formally invoking her Fifth Amendment rights. Admittedly, it would have been preferable for her to remain silent altogether, but it doesn’t seem to me that what she did comes even close to being sufficient to constitute a waiver.

One possible clue to where the courts might be on this issue can be found in a short unanimous opinion from the Supreme Court in a case called Ohio v. Reiner 532 U.S. 71 (2001). In that case, Reiner was charged with involuntary manslaughter in the death of his infant son from what the prosecution contended was “shaken baby syndrome.” At trial, Susan Batt, the child’s babysitter refused to testify relying on her rights under the Fifth Amendment and was granted immunity under applicable Ohio law. Batt then went on to testify that she had only asserted the privilege on advice of counsel and went on to maintain her innocence. The Supreme Court of Ohio reversed Reiner’s conviction on the ground that Batt had no valid Fifth Amendment right because her testimony could not have incriminated her. The Supreme Court of the United States reversed that decision, and in the process made a point about the Fifth Amendment privilege that strikes me as being especially applicable to the situation we’re presented with here:

We have held that the privilege’s protection extends only to witnesses who have “reasonable cause to apprehend danger from a direct answer.” Id., at 486. That inquiry is for the court; the witness’ assertion does not by itself establish the risk of incrimination. Ibid. A danger of “imaginary and unsubstantial character” will not suffice. Mason v. United States,244 U.S. 362, 366 (1917). But we have never held, as the Supreme Court of Ohio did, that the privilege is unavailable to those who claim innocence. To the contrary, we have emphasized that one of the Fifth Amendment’s “basic functions … is to protect innocent men … ‘who otherwise might be ensnared by ambiguous circumstances.’ ” Grunewald v. United States, 353 U.S. 391, 421 (1957) (quoting Slochower v. Board of Higher Ed. of New York City, 350 U.S. 551, 557—558 (1956)) (emphasis in original). In Grunewald, we recognized that truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth. 353 U.S., at 421—422.

The Supreme Court of Ohio’s determination that Batt did not have a valid Fifth Amendment privilege because she denied any involvement in the abuse of the children clearly conflicts with Hoffman and Grunewald. Batt had “reasonable cause” to apprehend danger from her answers if questioned at respondent’s trial. Hoffman, supra, at 486. Batt spent extended periods of time alone with Alex and his brother in the weeks immediately preceding discovery of their injuries. She was with Alex within the potential time frame of the fatal trauma. The defense’s theory of the case was that Batt, not respondent, was responsible for Alex’s death and his brother’s uncharged injuries. In this setting, it was reasonable for Batt to fear that answers to possible questions might tend to incriminate her. Batt therefore had a valid Fifth Amendment privilege against self-incrimination.

The Reiner case isn’t completely on point, of course, but it does demonstrate the importance that even a relatively conservative Supreme Court places on the right against self-incrimination, thanks in no small part to the case law that has developed on that year over the past sixty years or so. In the end, this may all be part of a game between the committee and Lerner’s counsel that will ultimately be resolved with an immunity deal of some kind, in which case any legal proceedings in this matter would come to an abrupt end when a deal is reached. At the very least, though, I suppose that if the House does move forward on this issue, it will serve as an object lesson in the importance of the Fifth Amendment. The irony that the party which claims to be all about standing up for the Constitution would be the one attempting to deny someone their Constitutional rights is one, I hope, that won’t be lost on anyone.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Rick DeMent says:

    You really have to ask?

    Highly-rated. Helpful or Unhelpful: Thumb up 24 Thumb down 0

  2. LAgraves says:

    I wish they would reform the IRS, instead of wasting time and money chasing that woman.

    Like or Dislike: Thumb up 11 Thumb down 0

  3. gVOR08 says:

    Interesting info, Doug. But an awful lot of column inches for a title that’s a rhetorical question. And strictly speaking, it ought to read “…Maintaining a Pretense of a Partisan Political Scandal”

    Like or Dislike: Thumb up 13 Thumb down 0

  4. Moosebreath says:

    “What’s More Important To the House GOP, The Constitution Or A Partisan Political Scandal?”

    And for the next post, What’s more important to the House GOP, the safety of our foreign service personnel, or a partisan political scandal?

    Highly-rated. Helpful or Unhelpful: Thumb up 22 Thumb down 1

  5. C. Clavin says:

    First: Issa has spent millions chasing phantasms. He has to come away with something or risk being exposed as a fool to his base…in addition to the rest of us…who already know that he is.
    Second: The Constitution means nothing to people like Issa and the other House Republicans. Well, that’s not true. To them it means what is convenient at any given time.

    Like or Dislike: Thumb up 10 Thumb down 1

  6. Dave Schuler says:

    I’ve long since thought they should grant her immunty and if she still refused to testify throw her in the clink for contempt as long as she maintains her position.

    Whatever partisan motivation the House may have, it still has a legitimate oversight responsibility.

    However, the longer they keep the ball up in the air, the greater the likelihood that the purpose is just to keep the ball up in the air rather than exercising its legitimate oversight responsibility.

    Like or Dislike: Thumb up 14 Thumb down 1

  7. Ben says:

    I think they’ll keep this up in the air until late summer or so, then grant her immunity. She’ll come in and testify in Sept/Oct, just in time for her testimony to be used as a scandal for the election.

    Like or Dislike: Thumb up 6 Thumb down 0

  8. mantis says:

    conduct that deprived Americans of their rights to free speech

    Who, exactly, was deprived their right to speak, Mr. Chairman?

    Like or Dislike: Thumb up 13 Thumb down 0

  9. Ron Beasley says:

    In an ideal world even Issa’s conservative district would boot this carnival barker out of office. He has wasted millions of dollars on investigations that led no where. Of course this is from an ideal world.

    Like or Dislike: Thumb up 8 Thumb down 0

  10. al-Ameda says:

    I commend Lois Lerner for politely telling Darrell Issa to go run off and investigate Benghazi some more.

    Like or Dislike: Thumb up 10 Thumb down 0

  11. C. Clavin says:

    @Dave Schuler:
    If they thought she had something to say…they’d grant her immunity.
    They know that granting her immunity and having her talk will just show they’ve been on a witch-hunt.

    Like or Dislike: Thumb up 12 Thumb down 0

  12. Mu says:

    They won’t grant her immunity, she could state “I did it because I dated a tea party member and he ditched me badly”, and the whole scandal goes down in flames worse than the Hindenburg. If she had something juicy they’d given her immunity long ago.

    Like or Dislike: Thumb up 9 Thumb down 0

  13. gVOR08 says:

    @C. Clavin: There’s nothing in the Constitution in Their Heads about 5th amendment rights for people they know are guilty.

    Like or Dislike: Thumb up 5 Thumb down 1

  14. gVOR08 says:

    @Dave Schuler:

    I’ve long since thought they should grant her immunty and if she still refused to testify throw her in the clink for contempt as long as she maintains her position.

    Have you seen anything that indicates she wouldn’t testify if properly granted immunity?

    Like or Dislike: Thumb up 6 Thumb down 0

  15. mantis says:

    Remember, the only constitutional rights conservatives recognize exist are the right to all the guns you can afford and the right to funnel limitless anonymous cash to politicians.

    Like or Dislike: Thumb up 12 Thumb down 1

  16. wr says:

    @gVOR08: There’s nothing in the Constitution in Their Heads about 5th amendment rights for people they know are guilty. Democrats.

    Fixed that for you.

    Like or Dislike: Thumb up 7 Thumb down 0

  17. Tillman says:

    @gVOR08: I think it’s more political. They would’ve given her immunity if anything she could testify about would a) paint the IRS as conservative-bullying and b) show that the Obama White House actively told them to do so.

    They’re not concerned with honest oversight in my opinion, so what possible things she could tell them aren’t worth immunity.

    Like or Dislike: Thumb up 8 Thumb down 0

  18. jukeboxgrad says:

    Lerner has made clear through her attorney that she would be willing to testify before the committee if she were granted immunity

    She did something even better than that. Link:

    Emails show that Lerner has expressed willingness to testify in a private deposition even without immunity

    The advancement of Issa’s career requires cameras, but the pursuit of justice does not. Now we know what Issa cares about.

    Highly-rated. Helpful or Unhelpful: Thumb up 17 Thumb down 0

  19. dennis says:

    The irony that the party which claims to be all about standing up for the Constitution would be the one attempting to deny someone their Constitutional rights is one, I hope, that won’t be lost on anyone.

    Doug, I respect you. I respect your opinion. You know this. That you wrote this sentence (using the word “irony” no less) without including as a backdrop the last 5.5 years is ironic in itself.

    Like or Dislike: Thumb up 11 Thumb down 0

  20. charles austin says:

    False dichotomy much Doug? Jeez.

    That’s ok, I know the authors here write for the audience, which ain’t me.

    Like or Dislike: Thumb up 0 Thumb down 4

  21. C. Clavin says:

    @charles austin:
    Thankfully.

    Like or Dislike: Thumb up 7 Thumb down 0

  22. Tillman says:

    @charles austin:

    That’s ok, I know the authors here write for the audience, which ain’t me.

    You haven’t been paying attention to the comment threads under Doug’s posts, have you? Hell, James’s posts? Dudes are constantly attacked with the “this is the party you support” line. They also take positions regularly against the vocal parts of the commentariat, like James on Kissinger.

    Like or Dislike: Thumb up 6 Thumb down 0

  23. muchboxgrad says:

    @Moosebreath: are you referring to benghazi?

    the same non partisan political scandal with breaking evidence as of Wednesday. Junkbox will have a field day.

    “Early on, Morell made a startling claim about the so-called “talking points,” the faulty narrative that initially blamed a protest for the attack.

    On the talking points, Morell said he dropped information about CIA security warnings — which were factual and accurate — because he thought it would be unprofessional to embarrass then-Secretary of State Hillary Clinton’s State Department. ”

    But right, the IRS targeting C-groups nothing to see here my @ss.

    Like or Dislike: Thumb up 1 Thumb down 4

  24. Rick DeMent says:

    @C. Clavin:

    First: Issa has spent millions chasing phantasms. He has to come away with something or risk being exposed as a fool to his base …

    Does he really?

    Like or Dislike: Thumb up 1 Thumb down 0

  25. jukeboxgrad says:

    muchboxgrad:

    Morell made a startling claim

    It’s always fun to see people pasting in text without bothering to mention where it came from.

    Your text came from Fox News. What Morell actually said is here. Why don’t you show us the part of the video where Morell made his allegedly “startling claim.”

    And since you are so interested in changing the subject to Benghazi, explain this:

    there is in fact hard evidence that the local Islamist scene in Benghazi was in uproar about the “anti-Islam video” in the run-up to the attack, and that this outrage figured prominently among the motivations of the assailants

    And there is more evidence here: link.

    Like or Dislike: Thumb up 3 Thumb down 1

  26. MUCHBOXGRAD says:

    This still doesn’t change the fact that the administration doctored and lied about the talking points. To claim the attack was just about the video is akin to saying muslim violence against jews is ok because they are jews. The fact remains there was no protest is was an coordinated attack from the beginning by al qaeda and the admin lied about it because it was election time.

    Like or Dislike: Thumb up 2 Thumb down 6

  27. jukeboxgrad says:

    the administration doctored and lied about the talking points

    Except that they didn’t. The original CIA memo said this:

    We believe based on currently available information that the attacks in Benghazi were spontaneously inspired by the protests at the U.S. Embassy in Cairo

    “The protests at the U.S. Embassy in Cairo” is an obvious reference to the video, because those protests were undoubtedly about the video. Tell me why it was wrong for Rice (et al) to tell us what CIA told her.

    And the recent Senate report said essentially the same thing:

    Some intelligence suggests the attacks were likely put together in short order, following that day’s violent protests in Cairo against an inflammatory video, suggesting that these and other terrorist groups could conduct similar attacks with little advance warning … Intelligence suggests that the attack was not a highly coordinated plot, but was opportunistic

    So both these sources say there wasn’t much planning. If you have any evidence of more than three days of planning, please present it. Three days is what they had, because the video was seen by millions on Egypt TV on 9/8/12. Less than 48 hours later there were massive riots in Cairo and elsewhere.

    I realize that Rush and Sean and Bill like to repeat the mantra “planned attack,” but CIA and the Senate both say there was hardly any planning.

    The video triggered riots in many countries, and there’s plenty of evidence that the Benghazi attackers were also motivated by the video. Link.

    To claim the attack was just about the video

    It’s always fun to watch a straw man being demolished. No one said “just about the video.” The video was a major factor. Conservatives said “the video had nothing to do with it.” That was a lie.

    there was no protest

    Witnesses have stated they didn’t notice a protest prior to the attack. They did not deny the presence of protesters later, and there actually were protesters later. Link:

    Witnesses in Benghazi said a small crowd gathered Tuesday night outside the consulate, a villa in a walled compound, to protest the anti-Muslim video… Some in the crowd had learned of the protest through Facebook. Others had heard of the video from Libyan students abroad or seen TV images of the Cairo protest. About 10 p.m., Abdel Monem Monem, a former advisor to the leader of the rebels’ transitional government, went to check and found about 50 people demonstrating without violence. … About 11:30 p.m., armed men drove up in about 20 cars bearing Islamic slogans. Sheik Mohamed Oraibi, a young Islamic preacher of the hard-line Salafist movement who was involved in the peaceful protest, watched as what he called “religious extremists” armed with Kalashnikov assault rifles and rocket-propelled grenades arrived and began firing at the consulate.

    A lot of people are confused about this.

    Like or Dislike: Thumb up 3 Thumb down 1

  28. anjin-san says:

    @ charles austin

    That’s ok, I know the authors here write for the audience, which ain’t me.

    When I was 20, an older friend gave me a bit of advice that has always served me well, I am passing it along to you.

    “Grown men should not whine”

    Like or Dislike: Thumb up 6 Thumb down 0

  29. MUCHBOXGRAD says:

    junky,

    I know your enthusiasm for defending muslim violence and the liars of this admin know no bounds, but the facts remain. No protest. Doctored talking points. I didn’t claim it wasn’t about the video, or some cartoons, or whatever is next on the islam grievance calendar. The point is they lied about it, just like the iRS which this article is about, or what ever the next lie out of our unremarkable president’s lips will be. Funny how they continue to push off the parts of the aca until after election time just like Bengahzi. What was it..Hillary was sick …then she had a concussion?…then she stepped down? The irs didn’t target the admin opponents waves the hand of obamakonbe the media says move along.

    Like or Dislike: Thumb up 1 Thumb down 10

  30. jukeboxgrad says:

    No protest. Doctored talking points.

    When you repeat your lies after you’ve been shown proof that they are lies you succeed only in proving that you’ve an incorrigible liar.

    Like or Dislike: Thumb up 8 Thumb down 2

  31. wr says:

    @MUCHBOXGRAD: Read your own message and you’ll see just how incoherent this whole argle-bargle is. You can’t even find anything of substance to accuse the administration of — oh noes they changed their talking points!!!!!

    The whole nonsense of the Benghazi stupidfest rests on one straw — that the rationale for Obama’s election was that he had wiped Al Qaeda off the face of the earth.

    But he never said anything like that, and foreign policy was a small part of the campaign.

    And without that, all you’ve got is the incoherent slime trail you’ve collected from Fox news. I’m sure one reason your messages read so poorly is that you have to type them fast enough that you can’t see how moronic they are.

    Like or Dislike: Thumb up 6 Thumb down 0

  32. al-Ameda says:

    @MUCHBOXGRAD:

    The point is they lied about it, just like the iRS which this article is about, or what ever the next lie out of our unremarkable president’s lips will be. Funny how they continue to push off the parts of the aca until after election time just like Bengahzi.

    I think you meant “The talking point is they lied about it …”
    You’re welcome.

    Like or Dislike: Thumb up 4 Thumb down 0

  33. dennis says:

    @anjin-san:

    anjin-san wins today …

    Like or Dislike: Thumb up 2 Thumb down 0

  34. MUCHBOXGRAD says:

    OK junky so per your “link” there was a protest after the attack around 11:30. But that’s really not the same thing as the taking point that there was a protest that got out of hand until the guys with the rpgs showed up is it? They showed up after to see what happened and celebrate in typical fashion after every attack on western interests. And back to the two original quotes from just a couple of days ago….”Early on, Morell made a startling claim about the so-called “talking points,” the faulty narrative that initially blamed a protest for the attack.” and “On the talking points, Morell said he dropped information about CIA security warnings — which were factual and accurate — because he thought it would be unprofessional to embarrass then-Secretary of State Hillary Clinton’s State Department”

    Like or Dislike: Thumb up 1 Thumb down 5

  35. wr says:

    @MUCHBOXGRAD: Why don’t you post this on Redstate or Breitbart or some other site where no one knows any facts? People here do know the history, and they know that you are either lying or desperately repeating the crap you’ve been fed.

    Either way, it’s a worthless waste of everyone’s time and eyeballs.

    God knows people don’t mind engaging with trolls around here. But we like our trolls to be a lot more entertaining.

    Like or Dislike: Thumb up 5 Thumb down 1

  36. jukeboxgrad says:

    so per your “link” there was a protest after the attack around 11:30

    It’s a link, not a “link,” and what you said it says is not what it says.

    And back to the two original quotes from just a couple of days ago

    Your quotes are worthless hackery from Fox News. I already challenged you to quote what Morell actually said, not the Fox version of what he supposedly meant.

    Like or Dislike: Thumb up 1 Thumb down 0

  37. charles austin says:

    Whine? Is that what you think this is? And I thought so much of you.

    Like or Dislike: Thumb up 0 Thumb down 5

  38. Juvenal says:

    Pleading the Fifth isn’t a license to commit perjury, and Reiner doesn’t do anything to change that.

    Like or Dislike: Thumb up 0 Thumb down 0