Divided Panel Decides Former IRS Official Waived Rights Against Self-Incrimination

Rep. Elijah Cummings, D-Md.,  and Darrell Issa, R-Calif., led the hearing. Rep. Elijah Cummings, D-Md., and Darrell Issa, R-Calif., led the hearing. J. Scott Applewhite/AP

A sharply divided House oversight committee on Friday approved a resolution declaring that Lois Lerner, until recently the head of the Exempt Organizations division at the Internal Revenue Service, waived her Fifth Amendment rights against self-incrimination when she delivered a brief statement before invoking the privilege during a May hearing.

The 22-17 vote -- which could pave the way for compelling Lerner to return and testify over the origins of her division’s inappropriate scrutiny of conservative nonprofit groups -- came after a passionate philosophical debate over the Constitution, Congress’ prerogatives and the rights of federal employees.

Rep. Darrell Issa, R-Calif., chairman of the Oversight and Government Reform Committee, introduced the resolution, which says “that the voluntary statement offered by Ms. Lerner constituted a waiver of her Fifth Amendment privilege against self-incrimination as to all questions within the subject matter of the committee hearing that began on May 22.” Issa recessed the May hearing rather than adjourn it to allow a future response to Lerner’s preface to pleading the Fifth, in which she said, “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.”

Issa on Friday said he had tried to be “exceedingly cautious” by consulting with the House parliamentarian and majority committee counsel rather than simply ruling back in May that Lerner had inadvertently waived her right to remain silent. Lerner’s statement was delivered in the presence of her attorney, who had written to the committee announcing that she would plead the Fifth and accusing the chairman of seeking to embarrass Lerner by subpoenaing her to appear at the public hearing.

Ranking Committee member Rep. Elijah Cummings, D-Md., decried the Republicans’ move as the “latest in a series of unsubstantiated charges with no evidence.” He called for the committee to behave “like a courtroom,” call in expert witnesses and prepare briefs on Fifth Amendment case law. “The chairman is going about this in reverse,” he said, citing legal opinions from a past House counsel and others asserting that a witness who makes an opening statement before pleading the Fifth does not waive the privilege.

Cummings and Issa butted heads over whether the legal opinion drafted by the House majority counsel backing the resolution should have been shared with Democrats, to which Issa responded, “You’ve had 37 days of public and private debate,” adding that the panel can’t hold a hearing every time there is misconduct by a witness. “This resolution is effectively a ruling from the chair.”

Vocal critics of Lerner’s tactics included Rep. Trey Gowdy, R-S.C., a former prosecutor, who told Democrats that having more hearings on constitutional issues “would not disclose one single solitary new fact.” Lerner’s brief declaration, he said, “was an amazingly broad statement,” and yet headed off any chance for cross examination. “She made nine specific factual assertions,” including authenticating a document, Gowdy said. “The reason we have [the Sixth Amendment’s ] confrontation clause is because cross examination” is the best method to get both sides of a story.

Rep. John Mica, R-Fla., called the morning vote a “showdown between Congress and an emerging bureaucracy that is out of control. The constitutional rights of the legislative branch are being thwarted by agencies,” he said. Lerner is “a poster child for federal bureaucrats thumbing their nose at the committee,” Mica said. “I’m fed up,” he added. “There’s nothing in the Constitution about a fourth branch that can tell us to go to hell.” (Mica later told reporters Congress in recent weeks was stiffed by no-show witnesses from the Homeland Security Department and the Office of Management and Budget.)

A substitute amendment to negate Issa’s resolution was offered by Del. Eleanor Holmes Norton, D-D.C., who advocated more thought and more hearings to avoid setting a dangerous precedent because the “Fifth Amendment, though it has become the most unpopular in the Bill of Rights, was a favorite of the Founding Fathers.” Her amendment failed 20-16 along party lines.

Rep. Gerry Connolly, D-Va., challenged GOP assertions that case law and Supreme Court rulings support their resolution, reading from several court and District of Columbia bar statements on ethics and citing a case from the 1950s McCarthy period in which a witness accused of being a communist denied the accusation but successfully pleaded the Fifth. “Pick your phrase, this is a star chamber, a Soviet show trial, a Kangaroo court, there’s no pretense of being fair,” Connolly told Government Executive .

Issa remained vague during the markup about the next step on getting Lerner’s testimony -- which both parties are seeking -- saying he couldn’t yet discuss the subject in an open session. Connolly said that the proper course would be “to go to court and the discuss need for compelling the testimony, but the quid pro quo is that the court would impose immunity,” he said. “They’re not even pretending to do that.”

After the vote, panel member Rep. Jackie Speier, D-Calif., told Government Executive she was outraged by Issa’s resolution, both because she believes it goes against the Supreme Court and because the Republicans relied on a majority counsel analysis not shared with most Democrats. “Even if Lois Lerner had waived her rights, she would simply do it again next time, so what have we accomplished here?” Speier said. “It’s irrelevant to the investigation. This federal employee with years of service who told the IRS office to shut down [the improper screening of tax-exempt status applicants] is now saddled with thousands of dollars in legal fees so they can get their 30 seconds on Fox News,” Speier said.

“If the goal is to make all the competent people in government leave,” Speier added, “This is the strong message.”

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