WASHINGTON – Former IRS official Lois Lerner has joined a very select club, becoming one of only a half-dozen people to be held in contempt by the entire U.S. House of Representatives.
Conservatives in the House believe she improperly invoked her right against self-incrimination under the Fifth Amendment when she refused to answer committee questions about a Cincinnati IRS office that allegedly targeted conservative political groups for scrutiny.
The House voted 231-187 to hold Lerner in contempt, largely along party lines. If tried and found guilty, she could serve up to a year in prison or face a fine of up to $100,000.
In May 2013, Lerner, former head of the IRS division on tax-exempt organizations, appeared before the House Oversight and Government Reform Committee, which had been investigating the actions of the IRS’ Cincinnati office for almost a year.
“I have not done anything wrong,” Lerner said in her opening statement. “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.”
With that said, she invoked her Fifth Amendment right against self-incrimination in response to every question from the panel.
Chairman Darrell Issa, R-Calif., and other Republicans contend that Lerner essentially forfeited her right by professing her innocence before refusing to answer questions. By their reasoning, she cannot cherry-pick the questions she wishes to answer, and if she addresses one question, she must address them all. Thus, her assertion of innocence means she must submit to questioning and her refusal to do so put her in contempt of Congress.
House Democrats disagree. “A witness does not waive her rights by professing her innocence,” said Elijah Cummings of Maryland, ranking member on the Oversight and Government Reform Committee, on the House floor before the contempt vote last week.
Constitutional scholars don’t see it in such black-and-white terms.
“I don’t think it’s a ridiculous or clearly wrong argument, but it’s not clearly right either,” says Ken White, constitutional law scholar from Los Angeles and founder of the law blog PopeHat. “I think it’s a little cloudy under the law.”
The Fifth Amendment states that “No person… shall be compelled in any criminal case to be a witness against himself….” While that may sound straightforward, the amendment applied to the real world is more complex. Still, it’s an area of law that isn’t litigated very often, leaving little precedent.
In the 2001 case Ohio v. Reiner, the U.S. Supreme Court held that “a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing.” The opinion was seen as an attempt to dispel the notion that refusing to answer questions serves as an admission of guilt. In the Ohio case, the high court recognized that even the innocent could fear prosecution enough to decline to take the stand.
Contempt cases are usually politically charged, such as then-Attorney General Janet Reno’s contempt charges by a committee during President Bill Clinton’s impeachment investigation. “The political aspect of it tends to complicate everything and make people do imprudent things,” says White.
Political complications got Lerner where she is now.
“The notion that they would argue that she had waived her Fifth Amendment right by saying anything was fairly predictable,” White said in a telephone interview. “I think it was, at a minimum, risky of Lerner and her lawyers to do a preliminary statement and one I guess was more governed by political necessities than by legal prudence.”
Still, White, a Harvard law graduate and former assistant U.S. attorney for the central district of California, cautions that the likelihood of a court ruling on the issue is low. The contempt vote turns the case over to the U.S. Attorney for the District of Columbia, who has the responsibility for deciding whether there are grounds for a criminal case against Lerner.
“I expect that the political sideshow elements will predominate over any actual legal analysis in front of any court,” says White.
“Effective prosecution and investigation of wrongdoing, or effective defense of someone accused, doesn’t necessarily make good TV or good politics. So you have it done like this, which is the worst of both worlds.”