Oversight Committee declares IRS's Lerner waived Fifth Amendment right

The House Oversight Committee declared Friday in a party-line vote that Lois Lerner, a central figure in the IRS targeting controversy, waived her Fifth Amendment rights against self-incrimination in testimony last month.

The 22-17 vote on the resolution makes it more likely that a federal court will ultimately decide whether Lerner can still claim her Fifth Amendment right.

Oversight Committee Chairman Darrell Issa (R-Calif.) stressed that the panel’s decision — which could pave the way for Lerner to be hauled back before the committee — wasn’t taken lightly.

But the one-sided vote shows the partisan divide over the committee's IRS investigation is growing.

On May 10, Lerner became the first IRS official to apologize for the agency’s targeting of Tea Party groups.

ADVERTISEMENT
Issa and other Republicans, such as Rep. Trey Gowdy (R-S.C.), said Lerner voluntarily made more than a few statements of fact in her May 22 appearance before the committee that opened her up to cross-examination.

“She made four specific denials,” Issa said. “Those denials are the core of the committee’s investigation in this matter.”

Lerner told members of the Oversight panel she had done nothing wrong and had broken no laws or IRS regulations. Lerner’s attorney, Bill Taylor, has denied that his client waived her right.

Committee leaders have not said when they might recall Lerner, who could still refuse to testify. That could open the door for the House to hold Lerner in contempt, which would move the dispute into federal courts.

Democrats at Friday’s hearing agreed that Lerner’s testimony could bring needed clarity to the IRS investigation, and they broached the idea of offering her some sort of immunity to answer questions. A GOP aide at Oversight did not rule out the possibility that Lerner could be granted partial immunity, but said her attorney had not yet made such an offer. 

Lerner is currently on administrative leave at the IRS after declining a request from the new acting IRS chief, Danny Werfel, to resign. Werfel has installed a replacement for Lerner at the top of a division that oversees tax-exempt groups.

While Democrats on the Oversight panel said they wanted to hear from Lerner, they also accused the GOP of rushing into Friday’s vote.

On another party-line vote, the committee rejected a proposal from Del. Eleanor Holmes Norton (D-D.C.) that would have required it to hold a hearing with experts to discuss whether Lerner did in fact waive her Fifth Amendment right in her statement to the committee.

“We must respect the constitutional rights of every witness who comes before the committee,” said Rep. Elijah Cummings (Md.), the panel’s top Democrat.

The Lerner vote capped a week in which the investigation of the IRS became muddled, with lawmakers sparring over whether the agency’s targeting affected liberal groups as well.

Democrats stressed repeatedly this week that progressive groups were also flagged on the internal watch lists that tripped up Tea Party groups.

Rep. Sandy Levin (D-Mich.) and other Democrats have also pointed out that the inspector general that outlined the targeting, Russell George, only acknowledged this week that liberal groups were among the close to 300 examined for his audit.

Republicans, meanwhile, say the evidence so far shows that groups on the right faced far more systematic targeting.

George, the independent Treasury inspector general for tax administration, wrote to Levin this week to say that 100 percent of groups with “Tea Party” in their name received special scrutiny between May 2010 and May 2012, while only 30 percent of groups with a “progressive” title received the same treatment.

The vote Friday brought into sharp relief the partisan cracks in the House investigation. Gowdy, for instance, said that there was nothing lawmakers could learn from experts on the Fifth Amendment.

“I don’t need law professors to come for a second hearing and review the case law,” Gowdy said. “There’s not going to be one additional fact uncovered at a second hearing.”

Rep. John Mica (R-Fla.) called Lerner a “federal bureaucrat thumbing her nose at Congress.”

“It’s not in the Constitution that there’s a fourth branch that can tell us to go to hell.”

But Rep. Gerry Connolly (D-Va.) said the GOP was going down a cynical path.

“If we do this today, every American citizen is at risk who is ever summoned before this committee,” Connolly said. "You may make a small political gain by passing this resolution at enormous long-term cost."

— This report was published at 12:21 p.m. and has been updated.