By Bernie Becker and Cristina Marcos - 05/07/14 07:07 PM EDT
The House voted Wednesday to hold former IRS official Lois Lerner in contempt of Congress for refusing to testify about the agency’s improper scrutiny of Tea Party groups.
The 231 to 187 vote, which attracted just 6 Democrats, marked the latest escalation in the nearly yearlong IRS controversy, which broke last May when Lerner acknowledged and apologized for the agency’s singling out of Tea Party groups seeking tax-exempt status.
Republicans said the move to hold Lerner in contempt was both reluctant and a long time coming, after they’d tried to secure her testimony for more than 11 months.
Lerner has twice invoked her Fifth Amendment rights against self-incrimination before the House Oversight Committee.
But Republicans say she waived those rights by claiming her innocence in an opening statement, and they have suggested the Obama administration is stonewalling them in their investigation of both the IRS and the 2012 terrorist attacks in Benghazi, Libya.
“The contempt of the U.S. House of Representatives is a serious matter, and one we take only when duly warranted,” House Majority Leader Eric Cantor (R-Va.) said on the House floor. “There are few government abuses more serious than using the IRS to punish American citizens for their political beliefs.”
The vote refers the contempt charges to the local U.S. attorney, who will decide whether to bring them before federal court.
Lerner, the former head of an IRS division that oversaw tax-exempt groups, could face up to a year in prison and a $1,000 fine if found guilty of the charges. She retired from the IRS in September, after being suspended shortly after the IRS controversy broke.
At the same time, the House’s batting average hasn’t been great in recent years when it comes to contempt charges. The Justice Department declined, for instance, to bring House-passed contempt charges against Attorney General Eric Holder to federal court.
“Congress loses about 80 percent of these contempt proceedings,” said Stan Brand, a House counsel under former Speaker Tip O’Neill (D-Mass.).
But legal experts say there’s also a crucial distinction between the case against Holder and Lerner.
Unlike with Holder, the Obama administration has not invoked executive privilege in the Lerner case. If they did, Republicans would be able to further press their case that the White House was obstructing their investigation into the IRS.
With executive privilege not expected to be an issue, Charles Tiefer, a law professor at the University of Baltimore, said that the Justice Department wouldn’t be as reflexively opposed to the contempt referral.
“They wouldn’t have a pre-established Justice Department decision on this one,” said Tiefer, a former deputy House counsel in the 1980s and 1990s.
Because of that, Brand said that: “If I had to bet, I’d say it was 50-50 or better that they’d proceed with the case.”
But there could also be legal reasons for the Obama administration to decline to bring the Lerner contempt charges to federal court.
Congressional Democrats and Lerner’s own attorney, Bill Taylor of Zuckerman Spaeder, have said they don’t believe the GOP’s charges will stand up in court.
Taylor, who had asked to directly address the House on why they shouldn’t proceed with contempt charges, said that Wednesday’s vote “has nothing to do with the facts or the law.”
“It is unfortunate that the majority party in the House has put politics before a citizen’s constitutional rights,” Taylor said.
Democrats have said that, citing precedents back to the days of former Sen. Joe McCarthy (R-Wis.) in the 1950s, that courts have historically protected the rights of witnesses who took the Fifth before Congress.
Still, as they lashed out at the contempt vote on Wednesday, Democrats also made sure to point out they weren’t defending Lerner’s job performance, and said they also wanted her to testify.
“I will not walk a path that has been tread by Sen. McCarthy and the House Un-American Activities Committee,” said Rep. Elijah Cummings (Md.), the top Democrat on the House Oversight Committee.
“I am not defending Ms. Lerner,” Cummings added. “But I cannot vote to violate an individual's Fifth Amendment rights just because I want to hear what she has to say.”
The contempt vote Wednesday came after weeks of Republicans intensifying their focus on the IRS, picking up the pace on an issue that, along with Benghazi, remains popular among their conservative base.
In a separate vote Wednesday, the House voted, again largely on party lines, to urge Holder to appoint a special prosecutor to investigate the IRS.
GOP lawmakers had been skeptical of seeking a special prosecutor, since Holder would have appointment power. But Republicans now say that the Justice Department is currently undertaking a phony criminal investigation into the IRS.
The Justice Department told the House Ways and Means Committee on Wednesday that it received its letter asking them to consider prosecuting Lerner for charges with penalties of up to 11 years in jail.
Democrats, while careful not to defend the IRS, have also accused the Republicans of using the IRS and Benghazi as an election-year distraction and political ploy.
“It may be red meat for the extreme right wing, but for too many Americans, it adds to the cynicism that this is a place where trivial issues get debated passionately and important ones not at all,” said Rep. James McGovern (D-Mass.).
Republicans say that Lerner remains the critical figure in finding out just what happened at the IRS.
“The Fifth Amendment is protection. It is a shield. Lois Lerner used it as a sword to cut and then defend herself from any response,” said House Oversight Committee Chairman Darrell Issa (R-Calif.).
This story was updated at 7:35 p.m.