Lois Lerner won't face contempt charges

Greg Nash

The Justice Department won’t charge Lois Lerner, the former IRS official who first acknowledged the agency’s improper scrutiny of Tea Party groups, with contempt of Congress.

Ronald Machen, the U.S. attorney for Washington, told Speaker John Boehner (R-Ohio) in a letter dated Tuesday that Lerner did not waive her Fifth Amendment rights in her appearances before Congress and that it would be inappropriate for the Justice Department to bring the matter before a grand jury.

The House voted to charge Lerner, who quickly became the central figure in the Tea Party controversy, with contempt in May 2014, after she twice invoked her Fifth Amendment right against self-incrimination before the Oversight Committee.

GOP lawmakers charged that Lerner waived her Fifth Amendment right by proclaiming her innocence during her first appearance in May 2013. But Machen rejected that assertion in his letter to Boehner, saying that Lerner “made only general claims of innocence.”

In a statement, the U.S. attorney’s office stressed that career prosecutors made the decision to not bring charges against Lerner and that the Constitution gives the former IRS official “an absolute defense” against prosecution.

Bill Taylor, Lerner’s lawyer, said he and his client were “gratified but not surprised by today’s news.”

“Anyone who takes a serious and impartial look at this issue would conclude that Ms. Lerner did not waive her Fifth Amendment rights. It is unfortunate that the majority party in the House put politics before a citizen’s constitutional rights,” Taylor said. “Ms. Lerner is pleased to have this matter resolved and looks forward to moving on with her life."

Still, Machen’s letter only addresses the contempt of Congress charge that Lerner received last year. Attorney General Eric Holder announced that the Department of Justice (DOJ) would conduct a criminal investigation into the IRS’s scrutiny of Tea Party groups shortly after the controversy broke in May 2013.

Emily Pierce, a DOJ spokeswoman, said the department will “complete our investigation as expeditiously as possible.”

“The Justice Department launched its IRS investigation without hesitation and immediately after public revelations of potential misconduct,” Pierce said. “Since that time, it has been conducted by career prosecutors and law enforcement agents with the utmost of integrity, and department officials have regularly characterized the investigation as a top priority.”

Congressional committees are also still looking into the matter. One of the panels, the House Ways and Means Committee, sent the Justice Department a criminal referral last year with potential charges that could add up to 11 years in jail.

Following Machen’s letter, Michael Steel, a Boehner spokesman, said the Obama administration had once more “tried to sweep the IRS targeting of taxpayers for their political beliefs under the rug.” 

“But unaccountable federal bureaucrats using their power to attack the First Amendment strikes at the heart of our democracy, and the American people deserve the truth,” Steel added. “The White House still has the opportunity to do the right thing and appoint a special counsel to examine the IRS’ actions."

GOP lawmakers have pushed for a special prosecutor for months, pointing out that one of the DOJ lawyers looking into the case was an Obama donor. Republicans also have insisted that Machen was “legally bound” to send their contempt charge to a grand jury.

But Holder has long resisted GOP calls to appoint a special prosecutor, saying the DOJ is able to handle the investigation.

Lerner was head of the IRS division that policed tax-exempt groups when she publicly admitted that the agency had singled out Tea Party groups in May 2013. Within weeks, she was placed on leave and eventually retired in September 2013.

Taylor, Lerner’s lawyer, has said that the former IRS official cooperated with the Justice Department’s investigation. Lerner refused to answer questions from lawmakers, Taylor said, because they didn’t trust Republicans to run a fair investigation.

Machen stepped down as U.S. attorney on Wednesday, making his letter to Boehner one of his final acts on the job. 

Politico first reported that Lerner wouldn't be charged with contempt.