The House Oversight Committee, led by Republican Rep. Darrell Issa, took a contentious, partisan vote Thursday morning to advance a resolution holding former IRS official Lois Lerner in contempt of Congress, 21 yea votes to 12 nays.
The contention here, laid out in this resolution, is that Lerner waived her right to plead the Fifth Amendment against self-incrimination when she professed her innocence in an opening statement to Congress last year. Lerner, who led the IRS department in charge of reviewing tax-exemption statuses, has repeatedly asserted her right to remain silent when asked to testify in hearings related to a scandal that broke last May, in which conservative groups were flagged for close scrutiny by IRS employees.
A number of liberal groups also received extra scrutiny during that time, but Issa contends in his new committee report that only tea-party-affiliated groups faced "systematic scrutiny because of their political beliefs."
Rep. Elijah Cummings, the panel's top Democrat, strongly condemned the contempt hearing in his opening remarks Thursday, linking it to former Sen. Joseph McCarthy's witch hunt for communists 60 years ago.
"I cannot cast a vote that will put me on the same page of the history books as Senator Joseph McCarthy," said Cummings, adding that he was not defending Lerner's action but her Fifth Amendment rights. Other Democrats, including Rep. Tammy Duckworth, D-Ill., also later raised the specter of McCarthy.
The contempt vote comes a day after the House Ways and Means Committee took a rare vote along party lines to formerly ask Attorney General Eric Holder to begin a criminal investigation into Lerner. The Justice Department is currently investigating the IRS's treatment of conservative groups.
So what does this mean for Lerner? Congress can hold officials in contempt for refusing to comply with a subpoena, as Issa and his fellow Republicans on the panel contend has happened here. This assertion must then be approved by the full House. House Republican leadership, including Speaker John Boehner, backs this particular contempt vote, so it looks like the Republican-controlled chamber will follow through.
From there, things get more complicated. As the Congressional Research Service explains, "Contempt may be used either to coerce compliance, to punish the contemnor, and/or to remove the obstruction." Each action from here would involve a different branch of government. To coerce compliance—in this case, force Lerner to answer the Oversight Committee's questions—Congress can go to a federal court to seek a civil judgment stating that Lerner is legally obligated to comply with the committee's subpoena. Congress could also take up the issue with the executive branch to seek criminal prosecution. Or, in the most extreme (and rarest) of cases, Congress could use its own authority to detain Lerner until she agrees to cooperate.
None of these options has a clear path to success. It's unlikely that the Justice Department would devote much time to pursue a case against Lerner, and the legal process of taking this case to a judge could take months, at best. Detaining Lerner seems politically unworkable, and would create a rare breed of governmental chaos.
Just look at what happened after the House detained Hallet Kilbourn, who was held in contempt for refusing to testify to Congress in 1876 during an investigation into a bankruptcy. That detention eventually turned into a Supreme Court case after Kilbourn sued the House speaker for false imprisonment. Consider it highly unlikely for Boehner and Issa to even consider imprisoning Lerner.
Holding people in contempt is not new for Issa. In June 2012, after a 16-month investigation into the botched Fast and Furious "gun-walking" operation in Arizona, Issa's panel voted to hold Attorney General Holder in contempt. The issue then, as now, was highly partisan, and resulted in a party-line vote, although 17 Democrats crossed over when the entire House held the contempt vote. Most Democrats staged a protest and chose to walk out on the vote, which marked the first time a sitting attorney general was deemed in contempt of Congress.
The hangover of Holder's contempt vote still haunts the halls of Congress, as this past week demonstrated. Holder appeared before the House Judiciary Committee on Tuesday and was led by Republican Rep. Louie Gohmert into a shouting match over the contempt vote. The exchange eventually devolved into a discussion of asparagus.
While a contempt vote could result in serious consequences for Lerner, it seems much more likely that this vote will go the way of Holder's: good politics for Republicans, but without much trouble for the person held in contempt.
This article appears in the April 11, 2014 edition of NJ Daily.