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Chairman Rep. Darrell Issa (R-CA) (R) and Rep. Elijah Cummings (D-MD) chat before the House Oversight & Government Reform Committee hearing on "The IRS Chairman Rep. Darrell Issa (R-CA) (R) and Rep. Elijah Cummings (D-MD) chat before the House Oversight & Government Reform Committee hearing on "The IRS' Systematic Delay and Scrutiny of Tea Party Applications" on Capitol Hill in Washington July 18, 2013. Internal Revenue Service officials who took part in added scrutiny of conservative groups seeking tax exemptions will testify publicly for the first time on Thursday before U.S. lawmakers, in an affair that has become increasingly partisan. REUTERS/Yuri Gripas (UNITED STATES - Tags: POLITICS BUSINESS) - RTX11QRE  

Issa to Cummings: You’re wrong. We can hold Lois Lerner in contempt

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Patrick Howley
Political Reporter

In a sternly-worded letter to Rep. Elijah Cummings — and obtained by The Daily Caller — Rep. Darrell Issa said that his House Oversight Committee is well within its rights to hold ex-IRS official Lois Lerner in contempt despite Cummings’ arguments to the contrary.

“On March 12, 2014, you sent a letter to Speaker Boehner arguing that the House of Representatives is barred ‘from successfully pursuing contempt proceedings against former IRS official Lois Lerner,’” Issa wrote. “Your position was based on an allegedly ‘independent legal analysis’ provided by your lawyer, Stanley M. Brand, and your ‘Legislative Consultant,’ Morton Rosenberg,” he wrote.

Brand and Rosenberg claimed that Lerner was not “made unequivocally certain that her failure to respond would result in criminal contempt prosecution.” But Issa strongly disagreed.

“You and your lawyers and consultants are wrong on the facts and the law,” Issa wrote. “The Facts: Lerner knew that the Committee had rejected her privilege objection and that, consequently, she risked contempt should she persist in refusing to answer the Committee’s questions.”

Though Oversight member Rep. Jim Jordan confirmed to TheDC that the committee is “moving” toward contempt for Lerner, Cummings’ recent letter to Boehner was widely reported on in the mainstream press to bolster the story that the committee is unable to compel Lerner to testify.

But Issa’s letter walks Cummings step-by-step through flaws in the Democrats’ argument.

“You and your lawyers and consultants also misunderstand the law. Contrary to your insistence, the courts do not require the invocation by the Committee of certain magic words; rather (and sensibly), the courts have required only that congressional committees provide witnesses with a ‘fair appraisal of the committee’s ruling on an objection,’ thereby leaving the witness with a choice:  comply with the relevant committee’s demand for testimony, or risk contempt,” Issa wrote.

“You and your lawyers and consultants refer specifically to Quinn v. United States.  In that case, however, the Supreme Court held only that, because ‘[a]t no time did the committee [at issue there] specifically overrule [the witness’s] objection based on the Fifth Amendment,’ the witness ‘was left to guess whether or not the committee had accepted his objection.’[2]  Here, of course, the Committee expressly rejected Lerner’s objection, and specifically notified Lerner and her counsel of the same:  She was left to guess at nothing,” Issa wrote.

“Second, Quinn expressly rejects your insistence on the talismanic incantation by the Committee of certain magic words: ‘[T]he committee is not required to resort to any fixed verbal formula to indicate its disposition of the objection.  So long as the witness is not forced to guess the committee’s ruling, he has no cause to complain,’” Issa wrote.

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