House Committee Ignores Fifth Amendment, Holds Lois Lerner In Contempt
Despite the fact that she asserted her right against self-incrimination, a House Committee has voted to hold Lois Lerner in contempt for refusing to testify.
As expected, the House Government Oversight Committee voted this morning to hold Lois Lerner, the IRS employee who was in charge of the office at the center of the political targeting allegations first revealed last year, in contempt of Congress for refusing to respond to the committee’s questions, setting up an inevitable Court challenge over whether or not Lerner waived her rights when she testified last year:
WASHINGTON — A House committee voted on Thursday to hold a former Internal Revenue Service official in contempt for refusing to answer its questions about her role in holding up applications for tax exemption from conservative political groups before the last election.
The official, Lois Lerner, faced the same panel, the Oversight and Government Reform Committee, last year and made a statement denying any wrongdoing. Then she refused to answer questions, invoking her Fifth Amendment right to not incriminate herself.
Republicans were outraged, asserting that Ms. Lerner had effectively waived her Fifth Amendment right by commenting on the accusations against her in her statement and in other settings, including under questioning from the Justice Department.
The committee determined last year, in a party-line vote, that Ms. Lerner had indeed waived her right to not testify. On Thursday, it voted 21-12 to hold her in contempt and refer the matter to the full House of Representatives.
We are not surprised by today’s partisan contempt vote,” Ms. Lerner’s lawyer, William W. Taylor III, said in a written statement. “The notion that the majority is engaged in objective oversight or fact-finding is pure fiction.”
Mr. Taylor added: “Ms. Lerner did not waive her Fifth Amendment rights by proclaiming her innocence. There is not a court in this country that will hold Ms. Lerner in contempt of Congress.”
Representative John J. Duncan Jr., a Republican member of the committee from Tennessee and a former judge, said Thursday that Ms. Lerner could not be allowed to make a statement asserting her innocence and then invoke her Fifth Amendment right.
“If that was possible, every person, every defendant in any proceeding in this country would do that,” Mr. Duncan said. “They’d come in and testify and then plead the Fifth so they couldn’t be questioned, so they couldn’t be cross-examined, so that they couldn’t be held accountable.”
“To allow this,” Mr. Duncan said, “makes a mockery of our system.”
Democrats accused Republican members of making a mockery of a citizen’s constitutional rights. Representative Elijah E. Cummings of Maryland, the ranking Democrat on the committee, compared the committee’s chairman, Representative Darrell Issa of California, to Joseph R. McCarthy, the Republican senator who used his subpoena power to accuse citizens of Communist sympathies in the 1950s.
“I cannot cast a vote that would place me on the same page of the history books as Senator Joseph McCarthy or the House Un-American Activities Committee,” Mr. Cummings said.
I’ve already discussed the legal issues surrounding the claim that Lerner waived her Fifth Amendment privilege before, here and here, and California attorney Ken White discussed the issue last week at his blog Popehat:
In short, it is not perfectly clear that Lois Lerner waived her Fifth Amendment rights by making an exculpatory and self-serving opening statement. The factors in favor of waiver are (1) that she made the statement purely voluntarily and gratuitously, and (2) that it was on the same subject matter of the questioning she would be facing. The factors against waiver are (1) that she was compelled to appear and (2) the statement did not admit any incriminating facts. At a minimum, in my view it was reckless for her to make an opening statement if her genuine aim was to protect her Fifth Amendment rights, given the uncertainty of the law.
When the issue is this close, it strikes me that one ought to err on the side of the rights of the individual and uphold the assertion of the right against self-incrimination in this case. To fail to do so would do far more harm to the rights of individuals who might find themselves in Lerner’s position in the future than it would benefit the prosecution of “justice,” a term I’m using rather loosely here if only because it’s obvious that the committee is being guided by partisan political passions rather than any desire to see justice done. If the reverse were the case, then they would be content to allow the ongoing Justice Department investigation run its course and accept whatever decision is ultimately made even it means that no criminal charges are brought against her. Of course, that won’t happen.
The next steps in this process are fairly simple. Just as happened when this same committee cited Attorney General Eric Holder for contempt over disputes regarding documents subpoenaed during the course of the investigation into the “Fast & Furious” matter, the contempt vote here must next proceed to the full House. As with the Holder vote, one expects that the contempt citation here will be approved on a party line vote. From there, the standard procedure would be for the House to refer the matter to the Justice Department for prosecution and if, as seems likely, the Justice Department declines to prosecute Lerner for contempt, the House could decide to proceed on its own in the U.S. District Court for the District of Columbia on a civil contempt charge. This is what happened in the Holder matter, and that contempt action remains pending in Federal Court, where it’s likely to stay until Holder leaves office. Theoretically, the House could decide to skip the referral to the Justice Department and order the House Sargent-At-Arms to have Lerner arrested and held in Congressional Jail (and yes, there is a jail at the U.S. Capitol Building). This has rarely happened over the course of the past 200+ years, however, and it seems unlikely it would happen in this case. If it did, though, one expects that Lerner’s attorney would immediately seek relief in Federal Court, thus putting the matter before a Federal Judge in any case.
As I’ve noted before, if the House Republicans really want to hear from Lerner, then they could direct the Committee to grant her immunity, and her attorney has already stated that she would testify if granted immunity. There have been some indications that negotiations have taken place between the House Committee and Lerner’s attorney on the immunity issue over the past months, but no deal has been reached yet. It’s possible that all of these maneuvers by the committee are just to gain leverage in those negotiations. If not, though, then we may all be getting an object lesson in the value of the Fifth Amendment in the very near future.
This couldn’t just be about attracting eyeballs. Couldn’t possibly be. No sir-ee.
You keep f*cking that chicken, GOP. You keep right on f*cking that chicken.
Well my conservative friends have been posting links about how Cummings was directing this IRS investigation the whole time. And how this is only partisan because “another corrupt Dem is lying about his involvement.” I await all of the hard incriminating illegal facts Issa can try and squeeze out of this just as he found criminal behavior regarding Benghazi.
Doug correctly wrote:
This boils the issue down quite nicely and will be a great example of how partisanship will most likely trump ideology. I suspect that many people who are typically for protecting the rights of the individual against the over-reach of the federal government will end up arguing that this is exactly what Lerner deserves.
What makes it even better is that these same people are most likely going to take this position because they are concerned that the federal government (the IRS) over-reached and infringed against the rights of individuals (i.e. conservative groups).
Issa’s a McCarthyite thug. My guess is that negotiations over immunity revealed that Ms. Lerner’s testimony would not give Issa what he’s after – Obama’s scalp. So this is a petulant shot that allows Issa to on a talk radio lying tour where he can keep his phony, fact-free accusations alive in the minds of the credulous.
@michael reynolds:
You forgot to refer to Ms. Lerner as innocent private citizen (instead of a IRS official) being subject to Issa’s witchhunt when parroting the Democrat talking points.
If it goes to the SCOTUS they’ll rule in favor of Issa’s witch-hunt…because Benghazi.
@Dave D:
Cummings Defender:
Can you explain why the Committee on Oversight & Government Reform is investigating (conducting a witchhunt on) a private citizen who was not part of the Government?
http://democrats.oversight.house.gov/investigation-of-voter-suppression/
Bravo, Doug. Even through I snark at you now and then, you are a man of honor devoted to the law and what it means.
Issa’s just a political thug in a cheap suit trolling for votes.
@Paul L.:
Well, first of all, under both Republicans and Democrats have pursued lines of inquiry with tenuous-at-best connections to government. For example Republican chairman Thomas M. Davis launched investigations into the Teri Schivo case and steroid use in Baseball. The Democrats would continue the steroid probe and eventually grow it to include Pro Wrasslin’ (just to demonstrate both side come up with pretty daft ideas)
(Source: http://en.wikipedia.org/wiki/United_States_House_Committee_on_Oversight_and_Government_Reform )
Beyond that, it’s worth pointing out that Cummings investigation is over actions taken around the 2012 *Federal Election*. So kinda government related there chum (at least more so than Wrasslin or Schivo).
“Ms Lerner, are you trying to exhibit contempt for this committee?”
“No, Mr. Chairman, I’m trying to conceal it.”
(Thank you Mae West…)
@Paul L.: “You forgot to refer to Ms. Lerner as innocent private citizen (instead of a IRS official) being subject to Issa’s witchhunt when parroting the Democrat talking points.”
Are you suggesting that American citizens lose their constitutional rights if they work for the government?
@Paul L.:
So, let me get this straight: I didn’t say what you wanted me to say, so you’ll put words in my mouth instead.
Is that you, Darrell?
@michael reynolds:
You used the other Democrat talking points from today’s hearing of ” McCarthyite ” and “phony, fact-free accusations”. I was reminding you of the other one used ” innocent private citizen”
@Matt Bernius:
We did the Committee ever target/investigate a private citizen before? Did they send letters to Michael Schiavo requesting he answer questions?
If I remember correctly they used the BS “Basebat has a anti-trust exemption” excuse for the steroid probe?
@wr:
Nope, but she did not have to proclaim her innocence and then take the 5th giving them an opening.
Trey Gowdy: How can Lois Lerner refuse to answer questions when she’s already made 17 assertions of fact?
http://hotair.com/archives/2014/04/10/trey-gowdy-how-can-lois-lerner-refuse-to-answer-questions-when-shes-already-made-17-assertions-of-fact/
@Paul L.:
Actually, they are investigating an organization that’s headed by a single individual. If you actually read the material at the link *you* provided, that would be clear.
Actually they attempted to sequester Terri Schiavo to have her answer questions (seriously) as an attempt to influence what was going on there.
BTW, the point your are attempting to make doesn’t make sense. The Committee regularly requests individuals to answer questions/testify. As they did with Lois Lerner. As they did with multiple figures in baseball.
But beyond that, the fact you are somehow working to justify the Baseball hearings, while at the same time suggesting that “voting” has nothing to do with Government pretty clearly demonstrates how bankrupt your position is on this particular topic.
@Paul L.:
BTW, did you actually read this article. Because in his summary of expert viewpoints on this topic, the majority consensus is that while this should move through the courts, most of the scholar didn’t think she waived her rights.
Alan Dershowitz is the only lawyer who would firmly go on record and say she did.
The rest of the people that Gowdy cites either didn’t think she did, or suspected that she didn’t.
Not exactly an “open-and-shut” case you got there.
@Matt Bernius:
And those individuals are just PRIVATE citizens like Lois Lerner not government employees
@Paul L.:
Correct. I’m not understanding your point sir.
I mean, Lois Lerner is both a Private Citizen and a Government Employee (or at least she was). Does one cancel out the other?
Again, because she’s a government employee does that mean that her rights as a private citizen no longer apply?
@Matt Bernius:
True the Vote President Catherine Engelbrecht is Private Citizen and not a Government Employee. See the difference?
@Paul L.:
No. You’re not making a clear point here. I’m really trying to follow your argument.
The committee is within its right to engage in an investigation (which can be characterized as a “witchhunt”). So it has the right to subpoena both of them.
What the committee cannot do is twist the law to suggest that Lerner waived her 5th amendment rights — see the link *you* provided. And if Engelbrecht seeks to take the 5th, then she’s well within her rights as well.
Going back to your original question:
And my answer is that there is established precedent that the committee can do exactly that (as what the organization that the individual represents is accused of doing is tied up in a government function — i.e. voting) for the same reason that they could investigate Baseball, the WWE, and Terry Schaivo.
What the committee cannot do is compel a citizen — regardless of who they work for — to incriminate themselves.
@Paul L.:
I’m the author of 150 books for kids and young adults, 25,000 pages, 5 million words give or take, so yeah, you caught me: I use “talking points.” They come to me in my daily email from Mind Central Control.
odds are that she’s not going to incriminate anyone of importance as they couldn’t agree on her immunity. at least she’s in play and getting some media attention for a while until they sweep her under the rug.
@michael reynolds: It’s a wonder you aren’t writing all your novels in Hungarian in George Soros’ honor.
@ptfe: …was there a point in there, or are you just making a nonsensical insult?
Lost in all this is the fact that most of those groups don’t deserve tax free status and should be investigated by the IRS. They are basically being accused of using search terms that worked.
Upshot:
The Murdoch media’s hosts/guests will scream about this for the next several years.
The non-Murdoch media – if they report on this at all – will collectively shrug, scurry for The Truth Must Be In The Middle Somewhere, and get back to plane coverage.
Mark Halperin will assert this is good news for John McCain.
@Matt Bernius:
Catherine Engelbrecht has not turned over the documents that Elijah E. Cummings demanded.
If you are right, I hope he tries to hold Catherine Engelbrecht in contempt like Lois Lerner after her disrespect of the ranking member of a House committee by calling him a liar.
https://www.youtube.com/watch?v=vaDaomcQXvI
Funny those who are saying that the Fifth Amendment is sacrosanct are the same people who say no Constitutional amendment is absolute when talking about Gun Control or Campaign Financing.
@Paul L.:
Dude, you just jumped arguments. Everything you just wrote there had nothing to do with your previous stream of thought.
That’s a fundamentally different issue. And for the record, the link you shared was a *news interview* not sworn testimony. Since she was on Fox news, not in front of the committee, I don’t think the can charge her with contempt.
Now if she called Cummings a liar under oath and in front of the committee, that would be different. However, it wouldn’t have anything to do with *the 5th amendment.*
You really don’t get the entire how contempt/committees/laws in general work, do you?
Take a breath, take your meds, and try and then fill in some gaps for us.
This is a fair point.
And as I wrote above, this represents a point where party affiliations tend to trump ideology. Folks who talk about the importance of maintaining second amendment protections, so far, have been among the first to try to remove Lerner’s 5th amendment protections.
@J-Dub:
Yeah, that bugs me too. They were understaffed for the volume of work they had (especially given outside pressure to turn applications around quickly), so they put in a checklist of “If it looks like this, it probably needs a closer look” based on experience to date.
I suspect that 92% of the Republican outrage is either honest disbelief (or an attempt to cover up the fact) that the phrase “Tea Party” was a strong predictor of non-compliance.
@DrDaveT:
After looking at this last year for OTB, I do think scandalous behavior took place. But it wasn’t so much the selection process as it was the following things:
1. The fact that there was no methodology in place for handling the reviews
2. That because of #1, the applications flagged for review sat for well over a year
3. That no one realized that these applications were sitting for well over a year
4. (And this is the biggest one IMHO) That it appears that even the IRS cannot explain the definition of “significant political activity” as it applies to 501(c)3’s.
Without a doubt, heads should roll and internal processes need to be reviewed. Unfortunately, to my knowledge, none of those issues has ever been taken up by the subcommittee.
In this particular case, there’s little evidence that anyone is actually interested in fixing the system.
@Matt Bernius:
Catherine Engelbrecht disrespect of the ranking member of a House committee by calling him a liar was not the reason I was giving for holding her in contempt .
This was:
BTW
allow for regulations of machine guns.
@Paul L.:
Ok, you weren’t clear. By that I mean in your previous post you actually, you know, wrote the following rational:
You kinda said that she should be held in contempt for calling him a liar. But that’s cool.
On the refusal to release documents. Yup, the committee would be well within its power to hold her in contempt. In the same way it held Holder. But, I don’t believe that’s a 5th Amendment issue, unless that’s the rational she’d giving for not turning over organizational documents.
Which if it is, then she should have exactly the same rights as Lerner.
See, we’re in agreement.
Ummm… of course. In the same way that speech can still be regulated, etc.
Again, your point is what exactly? Cause I’m clearly missing the decoder ring.
Is it that 5th Amendment rights are also regulated? If so, the answer is yes as well. But as the legal scholars suggested in that article *you* linked to above, Lerner’s statement most likely falls within her regulated protections.
So again, I don’t understand the point you are trying to make. I think it’s that Liberals = Bad/Hypocrites, but I’m really not seeing the reasons why.
@Matt Bernius:
Wow. Allow me to retort.
1. There was a methodology in place. The methodology was “flag any application with Tea Party, Patriot, or 9/12” in the name for extra scrutiny. That’s the essence of the scandal!
2. Applications did not just sit for well over a year. Many of the groups with the aforementioned names were bombarded with absurd questions like “what books do you read” and inappropriate request for donor lists.
3. The applicants certainly noticed that their applications were not being approved. They noticed when the IRS made ridiculous requests. Some of them complained to Republican Senators. They noticed too. In March 2012, a dozen Senators signed a letter to IRS Commissioner Douglas Shulman questioning the IRS tactics. I’ll quote the first paragraph:
4. It is totally irrelevant. Whether there is a definition or not has no bearing on why certain groups on one end of the political spectrum were routinely targeted while groups on the other end of the political spectrum had their applications sail through. The only progressive groups that received extra scrutiny were flagged for legitimate reasons, like being affiliates organizations that the IRS had previously known were problematic.
@Gavrilo:
Those were not the only flagged terms and noone has shown that right leaning groups were targeted at a higher rate per application than left leaning groups. If 75% of the political 501c3 applications were from right leaning groups then it follows that 75% of those receiving further review would be from right leaning groups. From all accounts it appears that far more right leaning groups sought 501c3 status to hide big donors than did left leaning groups in the last cycle. You either need to show that right leaning groups were unfairly targeted more per application or give this up as a scandal. I won’t hold my breath waiting.
@Grewgills:
Odd the IRS IG says differently.
Of course the IRS is stonewalling releasing the Documents to prove it one way or another.
That is a good idea. On April 15 everyone can just send in a blank tax return and write in “I plead the fifth.”. See how the IRS likes them apples !!
@Gavrilo: “It is totally irrelevant. Whether there is a definition or not has no bearing on why certain groups on one end of the political spectrum were routinely targeted while groups on the other end of the political spectrum had their applications sail through.’
Your case would be much stronger if you could find a way to make it without resorting to flat-out lies.
@Tyrell: Just wondering, Tyrell — do you use the roads? Maybe rely on the police or fire department for help? Do you have confidence that when you buy beef it’s really meat from a cow and not a horse or a dog? Do you feel secure that your country is safe from foreign invasion? Do you like having sewers servicing your house? (Assuming you do have running water…)
Do you think that maybe paying your taxes is somehow connected to these and many other governmental services?
Or do you just assume that you’re entitled to get everything for free?
It would seem according to the geniuses in the House Committee, that a criminal defendant would waive his or hers 5th amendment right by pleading not guilty (assertion of innocence).
@wr:
Roads are mainly paid for by Gas Taxes .
Police and Fire departments by local taxes.
I’ll bet it is cheaper to raise cows for beef than using horses or dogs.
water/sewers servicing my house are utilities that I pay for every 4 mouths.
And I’ll bet you are ones of the progressives who complains we spend too much money on the Military–industrial complex.
@Gavrilo:
As I wrote extensively about, there were a number of other terms on the list that also triggered automatic flags. And we know that some progressive groups applications were also automatically flagged.
To my point, automatic flagging wouldn’t have been an issue if an actual process had been in placed to efficiently deal with all flagged applications. The AG’s report is clear that there was no process, and every application that was flagged went into a similiar black hole.
Again, there is ample evidence that group from across the political spectrum received these requests. Again, the AG’s report found that once in the black hole, all applications were treated the same.
If an actual process had been in place no one should have received these letters. And for the record, while some of the questions made little to no sense, many did actually make sense.
This gets back to the larger problem of the IRS not being able to articulate what consitutes political activity. The net result left trying to come up with a measure to the wrong people (i.e. the folks who were trying to apply rules that they did not have a clear understanding of).
This is entirely correct. However, as the AG report points out, some applications had already been sitting for nearly a year before this letter was sent out.
My point is that the entire thing was an internal bureaucratic CF — but it’s one largely created by the nature of a bureaucratic structure — not intentional partisan attacks.
But there is no evidence yet made public to confirm this statement. In that we don’t have hard number on the percentage of hold-ups vs. sailed throughs and how they related to the overall number of applications.
It’s also clear that Tea Party organizations did gain there 501c3 status during this time. So not everyone disappeared into the black hole.
First, it’s clear that there were some “progressive” terms on the BOLO list. So this characterization isn’t completely accurate to being with.
This of course assumes that none of the Tea Party groups were engaged in illegitimate activities. Which a review of a number of their applications which have since been made public, suggest that they were in fact correctly flagged as to a lay examiner, their activities could be realistically constituted as being partially political in nature.
@Paul L.:
As the poster at Tax Analysts notes, the IRS has a long record of stonewalling any releases of public documents.
And, if one looks broader, the US government has a terrible record, across almost all of it’s institutions, of responding to requests to release and/or declassify documents. Freedom of Information advocates have complained about this for decades.
Occam’s Razor suggests that, given this long pattern of behavior, the current IRS foot dragging has less to do with covering up a scandal and more to do with the general position of the US government that they don’t need to release any information.
BTW, in no way do I support the government or the IRS’s position. However, I’ll also note that if Mr Issa and his panel have acquired a smoking gun document from the IRS that some how proved this was a HUGE conspiracy, it seems quite odd that they’ve sat on it for over a year. For better or worse, that committee has far more power than the average citizen to get the necessary document dumps.
@Matt Bernius:
Perhaps. I will note, though, that the IRS is forbidden by law from releasing an enormous variety of information related to returns, and that the definition of ‘return’ includes the applications we’re talking about. If my job involved a choice between getting yelled at for unnecessary foot-dragging on the one side, versus losing my job, paying a fine, and/or going to jail for improperly disclosing material, I know which side I would err on. Routinely.
The person upthread who opined that the improper release of information was probably a bigger deal than the BOLO list has a strong point.