Contempt. That was the verdict last year, when, upon recommendation of the House Oversight and Government Reform Committee, the full House of Representatives voted 231-187 to hold Lois G. Lerner in contempt of Congress for refusal to comply with a subpoena duly issued by the Committee on Oversight and Government Reform.
The vote followed an investigation into allegations that certain organizations making application for tax exempt status were targeted because of their titles or beliefs. In 2013, Lerner, the former Director of Tax Exempt Organizations (EO) at the Internal Revenue Service, was asked to testify before the House Committee on Oversight and Government Reform about her role in the developing scandal. She refused to testify, instead offering a statement, saying in part:
I have not done anything wrong. I have not broken any laws. I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee.
And while I would very much like to answer the Committee’s questions today, I’ve been advised by my counsel to assert my constitutional right not to testify or answer questions related to the subject matter of this hearing. After very careful consideration, I have decided to follow my counsel’s advice and not testify or answer any of the questions today.
Lerner was called back and again refused to testify.
Rep. Darrell Issa (R-CA), Chair of the House Oversight and Government Reform Committee, cried foul, asserting that Lerner’s statement was the equivalent of a waiver of her Fifth Amendment right against self-incrimination.
A year later, the Committee on House Oversight and Government Reform voted to proceed with contempt charges against Lerner, resulting in the House vote.
Procedurally, the House vote allows a referral of criminal contempt charges to the U.S. Attorney for the District of Columbia. And that’s what happened.
While many folks hoped that the result would be the filing of criminal charges, history wasn’t on their side: the U.S. Attorney’s Office hasn’t pursued criminal contempt charges since 1983 when the head of the Environmental Protection Agency (EPA), Anne Gorsuch Buford, refused to turn over documents which had been requested by Congress.
That streak continued when U.S. Attorney Donald C. Machen, Jr., citing the Constitution, advised the Speaker of the House:
We respectfully inform you that we will therefore not bring the Congressional contempt citation before a grand jury or take any other action to prosecute Ms. Lerner for her refusal to testify…
You can read the letter, which includes the legal analysis of the issue here:
Machen Letter to Boehner by Doug Mataconis
If that’s a little too much legalese for you, you can read a more plain language summary of the Fifth Amendment here together with an explanation of how a waiver would work here.
If she had been charged and convicted, Lerner could have face jail time and a fine of up to $100,000.
Lerner is no longer with the IRS, having retired last September, just a few months after making the tax organization scandal public during a disastrous appearance at an American Bar Association conference. She is, however, still the target of a number of investigations.
