A key committee in the House of Representatives voted Thursday to bring contempt charges against a former top official of the International Revenue Service for refusing to answer questions from lawmakers.
The Committee on Oversight and Government Reform, in a 21-12 party-line vote, sent to the full House of Representatives a request that Lois Lerner be held in contempt of Congress. If the full House finds her in contempt, the U.S. attorney for the District of Columbia could bring criminal charges and issue a fine up to $100,000.
Lerner was director of the Exempt Organizations division of the IRS, in charge of determining which non-profit organizations quality for tax-exempt status. Last May, she acknowledged, while answering a planted question at a legal conference, that conservative applicants were subjected to inappropriate additional scrutiny.
What followed was a media and legal circus. Lerner went before the oversight committee last year, issuing a lengthy statement in her defense but then pleading her 5th Amendment rights against testifying. She was brought before the committee, headed by California Republican Darrell Issa, last month, where she again asserted her right to not testify.
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That set in motion Thursday’s votes. Issa and fellow Republicans insist that by giving a statement and looking over some documents during the hearing, Lerner had effectively waived the right to avoid questions from lawmakers. They argued repeatedly Thursday that Lerner’s targeting of conservative organizations trampled on their First Amendment rights to political speech.
Democrats also argued rights, saying that holding Lerner in contempt of Congress trampled on her right to not be forced to testify because anything she said could be used against her later in a court of law.
The American public has only seen glimpses of the actual underlying issues. Issa has selectively released portions of transcripts of his committee’s interviews of IRS employees and some media have been allowed to see, but not possess, some but not all transcripts. Without viewing the full context, it is difficult to know for sure motives of Lerner and subordinates and details of how they came to conclusions.
“Chairman Issa, why don’t you put the whole thing out?” demanded Rep. Stephen Lynch, D-Mass., shortly before the committee denied a request from Democrats to make all materials public.
In response to complaints, Issa insisted that he didn’t want to let potential future witnesses know too much.
“It is ill advised … because it does provide a road map as to the questions and answers,” said Issa, adding that the IRS continues to withhold many of Lerner’s emails and said some information could take two years to get to him.
If the full House also votes to hold Lerner in contempt, existing law specifies the U.S. attorney has the duty to bring criminal charges.
But Raymond Shepherd, head of the Congressional Investigations practice at the law firm Venable LLP, cautioned that federal courts have traditionally given prosecutors wide latitude in actually bringing charges.
“No court has ever been asked to consider the bounds of this discretion nor has one ever compelled a prosecutor to bring a contempt charge,” Shepherd wrote in a review of the legal matters provided to reporters. He listed a number of past congressional contempt cases that did not end with charges.
These include contempt citations by Congress against Environmental Protection Agency Administrator Anne Gorsuch Buford in 1982; former White House Council Harriet Mires and White House Chief of Staff Joshua Bolten in 2008; and Attorney General Eric Holder in 2012.