The House Oversight and Government Reform Committee passed a resolution today finding that senior IRS official Lois Lerner waived her Fifth Amendment right not to incriminate herself at a hearing last month.
Lerner, the IRS director of Exempt Organizations who is at the center of the IRS political targeting controversy, refused to answer questions from members of the committee at the May 22 hearing.
The resolution passed down party lines, 22-17. The vote today means the committee’s subpoena remains in effect, although a date for Lerner’s next appearance, where she will retain the right to once again invoke her Fifth Amendment right, has not been announced.
Lerner’s attorney, William W. Taylor, dismissed today’s proceedings, which he characterized as “a highly polarized forum.”
“[Lerner] did not give up her right to refuse to testify by stating her innocence,” Taylor wrote in a statement Friday afternoon. “She had requested that she not be required to appear at all, and was forced against her will to invoke her rights in public. When she was forced to do that, she was entitled to say what she said.”
Taylor added that he has not had any communication with the committee since the hearing last month and he was not provided with a copy of legal opinions of lawyers for the House.
When Lerner read a statement aloud and authenticated a document for the record under oath during her May 22 testimony, questions arose surrounding the validity of Lerner’s assertion of her Fifth Amendment. Republicans asserted her actions waived her right to refuse to testify.
Rep. Darrell Issa, the chairman of the committee, pledged to look into the matter, recessing the hearing rather than adjourning it in order to preserve the committee’s ability to later compel Lerner to reappear under subpoena.
The next day, May 23, Issa, R-Calif., concluded that her Fifth Amendment assertion was invalid.
Today, Rep. John Mica, R-Fla., emphasized that it is the constitutional right of members on the committee to conduct oversight, but that duty is being “thwarted by a government employee.”
“Lois Lerner is, in fact, the poster child for thumbing her nose – a federal bureaucrat – thumbing her nose at Congress,” Mica fumed. “I’m telling you, I’ve absolutely had it with what we’ve seen.”
Mica added, “It’s not in the Constitution that there is a fourth branch that can tell us to go to hell.”
Rep. Elijah Cummings, the ranking Democrat on the committee, opposed the resolution and requested that Issa hold a hearing to obtain testimony from legal experts on the Fifth Amendment question.
“I want to hear Ms. Lerner’s testimony. I agree that she has information that is relevant to the committee’s investigation,” Cummings, D-Md., said. “But we must respect the constitutional rights of every witness who comes before the committee. And whatever your interpretation of the law is in this instance, we should all agree that this is not a responsible record to put forward because it undermines the credibility of this committee and the legitimacy of the resolution itself.”
Republicans on the committee, however, voted down a Democratic amendment to hold a hearing prior to voting on the resolution.
“I don’t need law professors to come for a second hearing and read me the case law,” Rep. Trey Gowdy, R-S.C., said. “There’s not going to be one additional fact uncovered at a second hearing. You don’t get to tell your side of the story and then avoid the very process that we have in this system for eliciting the truth.”
Democrats on the committee contended that the vote today is an example of Congress’ “trampling on the rights of an American citizen.”
“Case law is very clear that the fact that she made a statement does not somehow constitute a waiver,” Rep. Gerald Connolly, D-Va., said. “The record is quite clear [Lerner] intended absolutely from the beginning to invoke her Fifth Amendment and protect herself as an American citizen is entitled to do.”
If Lerner invokes the Fifth again when she is recalled before the committee, she could be found in contempt of Congress and her case could proceed to a federal court.
This story has been updated to include the statement of Lerner’s attorney, which was issued Friday afternoon.