Thread: House votes 231-187 to hold IRS’s Lerner in contempt of Congress

House votes 231-187 to hold IRS’s Lerner in contempt of Congress

By Bernie Becker and Cristina Marcos - 05/07/14 07:07 PM EDT

The House voted Wednesday to hold former IRS official Lois Lerner in contempt of Congress for refusing to testify about the agency’s improper scrutiny of Tea Party groups.

The 231 to 187 vote, which attracted just 6 Democrats, marked the latest escalation in the nearly yearlong IRS controversy, which broke last May when Lerner acknowledged and apologized for the agency’s singling out of Tea Party groups seeking tax-exempt status.

Democrats who voted in favor of the move included Reps. Ron Barber (Ariz.), John Barrow (Ga.), Collin Peterson (Minn.), Mike McIntyre (N.C.) and Nick Rahall (W.Va.) and Patrick Murphy (Fla.). All Republicans voted "yes."

Republicans said the move to hold Lerner in contempt was both reluctant and a long time coming, after they’d tried to secure her testimony for more than 11 months.

Lerner has twice invoked her Fifth Amendment rights against self-incrimination before the House Oversight Committee.

But Republicans say she waived those rights by claiming her innocence in an opening statement, and they have suggested the Obama administration is stonewalling them in their investigation of both the IRS and the 2012 terrorist attacks in Benghazi, Libya.

“The contempt of the U.S. House of Representatives is a serious matter, and one we take only when duly warranted,” House Majority Leader Eric Cantor (R-Va.) said on the House floor. “There are few government abuses more serious than using the IRS to punish American citizens for their political beliefs.”

The vote refers the contempt charges to the local U.S. attorney, who will decide whether to bring them before federal court.

Lerner, the former head of an IRS division that oversaw tax-exempt groups, could face up to a year in prison and a $1,000 fine if found guilty of the charges. She retired from the IRS in September, after being suspended shortly after the IRS controversy broke.

At the same time, the House’s batting average hasn’t been great in recent years when it comes to contempt charges. The Justice Department declined, for instance, to bring House-passed contempt charges against Attorney General Eric Holder to federal court.

“Congress loses about 80 percent of these contempt proceedings,” said Stan Brand, a House counsel under former Speaker Tip O’Neill (D-Mass.).

But legal experts say there’s also a crucial distinction between the case against Holder and Lerner.

Unlike with Holder, the Obama administration has not invoked executive privilege in the Lerner case. If they did, Republicans would be able to further press their case that the White House was obstructing their investigation into the IRS.

With executive privilege not expected to be an issue, Charles Tiefer, a law professor at the University of Baltimore, said that the Justice Department wouldn’t be as reflexively opposed to the contempt referral.

“They wouldn’t have a pre-established Justice Department decision on this one,” said Tiefer, a former deputy House counsel in the 1980s and 1990s.

Because of that, Brand said that: “If I had to bet, I’d say it was 50-50 or better that they’d proceed with the case.”

But there could also be legal reasons for the Obama administration to decline to bring the Lerner contempt charges to federal court.

Congressional Democrats and Lerner’s own attorney, Bill Taylor of Zuckerman Spaeder, have said they don’t believe the GOP’s charges will stand up in court.

Taylor, who had asked to directly address the House on why they shouldn’t proceed with contempt charges, said that Wednesday’s vote “has nothing to do with the facts or the law.”

“It is unfortunate that the majority party in the House has put politics before a citizen’s constitutional rights,” Taylor said.

Democrats have said that, citing precedents back to the days of former Sen. Joe McCarthy (R-Wis.) in the 1950s, that courts have historically protected the rights of witnesses who took the Fifth before Congress.

Still, as they lashed out at the contempt vote on Wednesday, Democrats also made sure to point out they weren’t defending Lerner’s job performance, and said they also wanted her to testify.

“I will not walk a path that has been tread by Sen. McCarthy and the House Un-American Activities Committee,” said Rep. Elijah Cummings (Md.), the top Democrat on the House Oversight Committee.

“I am not defending Ms. Lerner,” Cummings added. “But I cannot vote to violate an individual's Fifth Amendment rights just because I want to hear what she has to say.”

The contempt vote Wednesday came after weeks of Republicans intensifying their focus on the IRS, picking up the pace on an issue that, along with Benghazi, remains popular among their conservative base.

In a separate vote Wednesday, the House voted, again largely on party lines, to urge Holder to appoint a special prosecutor to investigate the IRS.

GOP lawmakers had been skeptical of seeking a special prosecutor, since Holder would have appointment power. But Republicans now say that the Justice Department is currently undertaking a phony criminal investigation into the IRS.

The Justice Department told the House Ways and Means Committee on Wednesday that it received its letter asking them to consider prosecuting Lerner for charges with penalties of up to 11 years in jail.

Democrats, while careful not to defend the IRS, have also accused the Republicans of using the IRS and Benghazi as an election-year distraction and political ploy.

“It may be red meat for the extreme right wing, but for too many Americans, it adds to the cynicism that this is a place where trivial issues get debated passionately and important ones not at all,” said Rep. James McGovern (D-Mass.).

Republicans say that Lerner remains the critical figure in finding out just what happened at the IRS.

“The Fifth Amendment is protection. It is a shield. Lois Lerner used it as a sword to cut and then defend herself from any response,” said House Oversight Committee Chairman Darrell Issa (R-Calif.).

This story was updated at 7:35 p.m.


http://thehill.com/policy/finance/20...er-in-contempt

I won't hold my breath waiting for Ms. Lerner or any of her cohorts to suffer any consequences.

In Showdown With Lerner, House Imprisonment Not Out of the Question
203 Comments
Email email

By Katy O’Donnell
Roll Call Staff
April 29, 2014, 3:28 p.m.

Former tax official Lois Lerner’s confrontation with Congress over a potential contempt citation may get emphatically more dramatic, depending on how far back into congressional history House Republicans want to reach.

Deep in the recesses of congressional power — and in precedent stretching back to the 18th century — is the ability to pursue “inherent contempt” against individuals, including the right to imprison a person in the Capitol to compel compliance with lawmakers’ authority.

Congress hasn’t exercised inherent contempt power since 1935 and there’s no suggestion that lawmakers are actively considering the option in Lerner’s case.

But House attorneys, and lawyers for the former Internal Revenue Service official, are looking at the potential legal paths as House leaders consider first whether to take a contempt citation to the floor and, if it passes, whether the Justice Department will pursue prosecution.

The House Committee on Oversight and Government Reform voted on party lines to recommend the full House hold Lerner in contempt and refer her to the Justice Department for refusing to testify before the committee on allegations of political targeting at the IRS of conservative political groups seeking tax-exempt status. The GOP members said Lerner, who resigned from the IRS last year under fire for her role as the head of the office at the heart of the controversy, waived her Fifth Amendment privilege by delivering an opening statement declaring her innocence before the panel last year.

Her attorney, Bill Taylor of Zuckerman Spaeder, on Monday wrote to House Speaker John A. Boehner of Ohio and Majority Leader Eric Cantor of Virginia asking that Lerner have an “opportunity to present to the House” the reasons why it shouldn’t hold her in contempt.

Cantor suggested this week that a vote on whether to recommend a contempt prosecution against Lerner would likely come in May.

It’s not clear whether the Justice Department would pursue a prosecution, raising the question of what House Republicans will do if the contempt charge dies at the department. The inherent contempt authority leaves open the possibility that Congress can pursue the matter itself.
Bribers and Delinquents

Congress’ authority to independently try and detain an individual has twice been upheld in the Supreme Court — in 1821 and 1927 — and there’s a colorful history of hauling delinquents before the House chamber.

The House first pursued inherent contempt proceedings in 1795 against two men accused of offering bribes to members. Congress would initiate 13 more inherent contempt cases over the course of the next six decades. In fact, the criminal contempt statute — the one facing Lerner — was devised as an alternative in 1857 because trying witnesses at the bar of the House chamber was taking too much time away from legislative duties.

The people rounded up by the sergeant-at-arms ranged from would-be bribers to an attorney general’s brother who was imprisoned in 1927 for refusing to comply with a subpoena in a Senate investigation of the lack of prosecution of allegations of antitrust violations. The offending witness is supposed to be locked up in the Capitol, but Congress also has turned them over to the city jail.

Being physically imprisoned in the Capitol is one thing, but even becoming the target of a congressional investigation means sacrificing a few freedoms, according to Raymond Shepherd, the head of Venable’s congressional investigations practice.

“The Senate has more rules” guiding the protection and release of information in an investigation, Shepherd said. “On the House side, it’s the wild, wild West.”

Either the House or Senate can invoke inherent contempt without a concurring vote in the other chamber.
Sanctions as Incentives

Because of the doctrine of the separation of powers, some common-law rules of judicial court do not apply to the legislative branch. Attorney-client privilege, for example, is subject to the discretion of the investigating committee. Committees often respect the principle in practice, but it’s not guaranteed, according to Shepherd.

In inherent contempt cases, even a witness’s request for judicial review through a writ of habeas corpus historically has not gone far, and the review “may be relatively limited, compared to the plenary review accorded by the courts in cases of conviction under the criminal contempt statute,” according to a report on contempt procedure by the Congressional Research Service.

In 1934, for example, the Supreme Court denied a writ of habeas corpus to a petitioner in the custody of the Senate sergeant-at-arms in a case involving the destruction of documents requested by a Senate subpoena.

Yet in some ways, despite the trauma of being publicly tried on the House floor, inherent contempt is more lenient than the criminal contempt statute. Inherent contempt can be coercive — once the terms of a subpoena are met, the witness generally is released. But criminal contempt is punitive: The witness “generally will not be able to purge himself by testifying or supplying subpoenaed documents after he has been voted in contempt by the committee and the House,” the CRS report notes.

Because the criminal sanction is so final, the witness “lacks an incentive for cooperating” once the vote has taken place, according to CRS. So if information is the goal, inherent contempt, however dramatic, may actually work better.

Of course, that’s assuming the Justice Department actually follows through on a criminal contempt referral.

Even though the Justice Department has the “duty” to convene a grand jury in the event of a contempt citation under the criminal statute, courts have given prosecutors wide discretion on the issue.

Taylor, Lerner’s lawyer, did not respond to a request for comment on the possibility of an inherent contempt vote. Taylor has repeatedly dismissed the contempt proceedings as a partisan exercise.

And Oversight Chairman Darrell Issa, R-Calif., has developed a reputation as a passionate partisan critic of the Obama administration, and he and Attorney General Eric H. Holder Jr. have made little effort to disguise their animosity for one another in congressional hearings.

Just last week, Issa sent a letter to Holder alleging potential “harassment by the Justice Department,” in collusion with the IRS, “of groups engaged in otherwise lawful activity.” According to the letter, emails between Lerner and a Justice Department official prove the department “played a role in a government-wide effort to target political speech.

http://cdn.rollcall.com/news/in_show...nopagination=1