A House Committee Just Approved a Contempt Report for Former IRS Official Lois Lerner. Now What?

The committee vote was expected, but it’s not so clear where this case goes from here.

Caption:WASHINGTON, DC - MARCH 05: House Oversight and Government Reform Committee member Rep. Thomas Massie (R-KY) (L) takes a photograph with his iPhone as Chairman Darrell Issa (R-CA) (R) swears in former Internal Revenue Service official Lois Lerner (back to camerae) during a hearing in the Rayburn House Office Building March 5, 2014 in Washington, DC. Issa adjuourned after Lerner exercised her Fifth Amendment right not to speak about the IRS targeting scandal during the hearing.
National Journal
Dustin Volz and Matt Berman
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Dustin Volz and Matt Berman
April 10, 2014, 8:55 a.m.

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.

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