No barriers to holding Lerner in contempt

When Lois Lerner, the IRS’s former Director of the Exempt Organizations Division, initially appeared before the House Committee on Oversight and Government Reform in May 2013, she made an opening statement flatly denying any involvement in the IRS’s use of political criteria to target conservative organizations seeking tax-exempt status:

“I have not done anything wrong.  I have not broken any laws.  I have not violated any IRS rules or regulations . . . .” Having told the Oversight Committee what she wanted it to hear, she then refused to tell the Committee what it wanted to hear.  Invoking the Fifth Amendment privilege against self incrimination, she advised the Committee: “I will not answer any questions or testify about the subject matter of this committee’s meeting.”

On April 10, 2014, the Committee will consider a resolution holding Lerner in contempt of Congress for persistently refusing to answer its questions.  Ranking Democratic Member Elijah Cummings (Md.) argues that any potential criminal prosecution of Lerner for contempt of Congress would be doomed because, he says, the Committee failed “to meet the prerequisites required by the Supreme Court in order to hold a witness in contempt.”  Rep. Cummings is clearly wrong.

To lay the foundation for a contempt prosecution, a congressional committee need only clearly inform a witness who has refused to answer the committee’s questions that her Fifth Amendment objection has been rejected, thus giving the witness a clear choice between answering and risking a contempt prosecution for refusing to answer.  In other words, Lerner cannot be convicted for contempt of Congress only if she was “left to guess whether or not the committee had accepted [her] objection.”  Quinn v. United States, 349 U.S. 155, 166 (1955). 

The Supreme Court has made clear that no “fixed verbal formula” is required for rejecting a Fifth Amendment objection; rather, the committee may inform the witness either directly (by an express rejection of the objection) or indirectly (by, for example, a direction to answer notwithstanding the objection).  Id. at 166, 170.  But“[s]o long as the witness is not forced to guess the committee’s ruling, [she] has no cause to complain.”  Id. at 170.

Here, Lerner was plainly informed of the Committee’s ruling both directly and indirectly; she was explicitly advised that the Oversight Committee had rejected her privilege objection and that the Committee insisted on her answers to its questions. 

At the May 2013 hearing, after Lerner had both professed her innocence and refused to answer questions, Committee Chairman Darrell Issa (R-Calif.) urged her to reconsider, expressing the view that she had waived her Fifth Amendment right to refuse to testify.  She reiterated her refusal, and Issa recessed the hearing to give the Committee an opportunity to evaluate whether Lerner had waived her Fifth Amendment privilege objection.

On June 28, 2013, the Committee passed a resolution ruling that Lerner’s sweeping profession of innocence “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, 2013.”

On February 25, 2014, Issa specifically informed Lerner’s attorney in writing of the Committee’s decision and recalled her to testify on March 5.  The chairman left no uncertainty about the Committee’s ruling or what was expected of Lerner:  “[B]ecause the Committee explicitly rejected her Fifth Amendment privilege claim, I expect her to provide answers when the hearing reconvenes on March 5.” 

Thus, even before she arrived at the hearing on March 5, Lerner was clearly apprised of the Committee’s rejection of her Fifth Amendment objection and of the Committee's expectation that she answer its questions.  At the March 5 hearing, Issa yet again warned Lerner that it was “important . . . for [her] to know and understand” that “the committee approved a resolution rejecting [her] claim of Fifth Amendment privilege,” that “the committee recalled her to appear today to answer questions,” and that if she “continues to refuse to answer questions from our members while she is under a subpoena, the committee may proceed to consider whether she should be held in contempt.”

At that point, Lerner faced a clear choice: either she could answer the Committee’s questions, or she could continue to assert her Fifth Amendment objection and risk a contempt prosecution.  She chose the latter, once again invoking the Fifth Amendment and stating that she would “decline to answer any question on the subject matter of this hearing.”

In short, when Lerner continued to refuse to answer the Committee’s questions, she did so knowing full well that the Committee had rejected her privilege claim.  She is thus subject to prosecution for contempt. 

Cooper is a founding member and chairman of Cooper & Kirk, PLLC.  He served as an assistant attorney general for the Justice Department's Office of Legal Counsel during the Reagan Administration, and his practice focuses on constitutional cases.