Congress must hold Lois Lerner in contempt

Ronald D. Rotunda Professor, Chapman University School of Law
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Congress does more than enact laws. As President Woodrow Wilson advised, “The informing function of Congress should be preferred even to its legislative function.” Congress, he said, must “scrutinize” the “administrative agents of the government.” That is why the House Committee on Oversight and Government Reform, chaired by Darrell Issa (R., Calif), is investigating whether the IRS abused its powers by targeting Tea Party groups based on their political beliefs. As we reach April 15, we should all be concerned.

We know that Russell George, the Inspector General for Tax Administration (part of the Treasury Department) admitted before Congress last May, “The IRS targeted specific groups applying for tax-exempt status. It delayed the processing of these groups’ applications, and requested unnecessary information, as well as subjected these groups to special scrutiny.”

We know that the National Organization for Marriage (NOM, supporting traditional marriage) filed confidential documents with the IRS listing its donors. Its adversary in the gay marriage controversy, Human Rights Campaign (HRC) published NOM’s tax returns and confidential list of donors on its website. The published documents included IRS internal codes placed after the IRS received them, so we know that they came from the IRS. One or more IRS officials committed a felony.

Earlier this month, we learned that agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) started an extensive compliance investigation of a Tea Party only after it applied for tax-exempt status. The director of ATF claims not to know why his bureau looked into it.

Lerner testified under oath before the House Committee on Oversight in May 2013 that she did nothing 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.” Then she refused to answer any questions, asserting her Fifth Amendment right to incriminate herself. Yes, you read that right: right after she swore she did nothing wrong she refused to testify because of the Fifth.

The president’s answer to all these facts, in his February 2014 interview with Bill O’Reilly, is that there is “not even a smidgeon of corruption.” What does the president know that the rest of us do not know? What have the president’s advisors told him that he hasn’t told us? What did the president know and when did he know it?

Lerner cannot plead the Fifth while testifying under oath that she is innocent. As Harvard Professor Alan Dershowitz has advised about Lerner, “Once you open the door to an area of inquiry, you have waived your Fifth Amendment right … you’ve waived your self-incrimination right on that subject matter.” The law in this area is “is as clear as it could be.”

Lerner also gave a secret, lengthy interview to the Department of Justice. She cannot tell her story to the Justice Department and then refuse to tell the same story in another government proceeding. That is the holding of the DC Circuit, in Ellis v. United States (1969).

Lois Lerner cannot play fast and loose with the House Committee on Oversight, if that committee is to fulfill its duty to keep the IRS honest. What is difficult to understand is the position of Lerner’s lawyers and Congressman Elijah Cummings (D. Md.). They argue that the House cannot hold Lerner in contempt because “as no stage in this proceeding did the witness receive the requisite clear rejections of her constitutional objections and direct demand for answers nor was it made unequivocally certain that her failure to respond would result in a criminal contempt prosecution.”

That’s a real hoot. The House Committee, in June 2013, met and approved a resolution rejecting Lerner’s Fifth Amendment claim because she waived it by her partial testimony. Its letter of February 2014 advised Lerner again that the committee would recall her in March and give her a chance to testify and avoid contempt.  She did not testify, and the committee warned her, yet again, at the March 2014 hearing, that if she continues to refuse to answer she should be held in contempt.

At this point, everyone in the world knows that the committee has given her these two choices. It is nonsense on stilts to suggest that Lerner is in the dark about the committee’s view of her refusal to testify.

Congress, to keep the IRS honest, should hold Lerner in contempt. President Wilson advised us, the “only really self-governing people” is the people who “discusses and interrogates its administration.”