By Bernie Becker and Peter Schroeder - 05/22/13 10:04 PM EDT
House Oversight Committee Chairman Darrell Issa said Wednesday that the official at the center of the uproar over the Internal Revenue Service’s targeting of conservative groups effectively waived her Fifth Amendment right, strongly suggesting the staffer could be hauled back before the panel.
Issa (R-Calif.) and other GOP lawmakers say that Lois Lerner, who heads an IRS division that oversees tax-exempt groups, might have tossed aside her rights against self-incrimination by emphasizing in her opening statement that she had done nothing wrong.
“I am looking into the possibility of recalling her, and insisting that she answer questions,” Issa said.
Issa’s comments were the capper on a hearing in which Republicans gave their sharpest criticism to date to the inspector general for tax administration, Russell George, who examined the IRS, and to former IRS Commissioner Doug Shulman.
Treasury Secretary Jack Lew, testifying in a separate hearing down the hall, also absorbed charges from Republicans that he was dodging their questions on the IRS targeting, as GOP lawmakers continue to skeptically eye the idea that Treasury and White House officials could have been totally in the dark about the extra scrutiny.
Lerner, making her first public appearance since disclosing the IRS’s treatment of conservative groups almost two weeks ago, had informed House Oversight through her attorney that she would assert her Fifth Amendment rights.
At the end of the hearing, Issa said that led him to believe that Lerner, who has hired the same high-profile attorney that defended Dominique Str auss-Kahn against sexual assault charges, would not give an opening statement. But Lerner ended up vigorously defending her actions, saying that she had broken no laws or IRS regulations.
“Because I’m asserting my right not to testify, I know that some people will assume that I’ve done something wrong,” Lerner said. “I have not.”
That statement led Rep. Trey Gowdy (R-S.C.) to charge that Lerner’s Fifth Amendment privileges were gone, and that she should answer questions. Gowdy’s remark drew applause from the audience in the Oversight hearing room
But Issa dismissed Lerner, after failing to convince her to answer a narrower band of questions.
“I think Trey’s on target,” Rep. Jim Jordan (R-Ohio) told reporters after the hearing. “When you come in and you assert one thing and then are not going to be cross-examined, that just doesn’t square.”
But Rep. Elijah Cummings (Md.), the top Democrat on the Oversight panel, said that lawmakers should give Lerner “the benefit of the doubt,” especially because she was following the advice of her counsel, William Taylor.
“I don’t think that issue is that clear,” Cummings said.
Michael McKay, a former U.S. Attorney under former President George H.W. Bush, said he was surprised to see Lerner address the matter at all, giving congressional critics the opportunity to argue she waived her Fifth Amendment rights.
“Any time you answer any questions involving the subject matter in which you want to invoke the Fifth, you run the risk of waiving the Fifth,” he said. “By saying she did nothing wrong, did she open the door by implicitly discussing the subject matter? One could argue that she did.”
Despite Issa’s confidence that Lerner tossed aside her rights not to testify, McKay, now a partner at the McKay Chadwell law firm, said it is still an open question for a judge to settle.
“I don’t think anyone’s going to be able to predict with any level of confidence what a court would say,” he said.
If a court rules in the committee’s favor, Lerner could be forced to answer the committee’s questions, or risk being charged with contempt of Congress, or even contempt of court for defying the judge’s order.
But even without Lerner’s full testimony on Wednesday, it remains clear that Republicans — and some Democrats — believe there’s still much to learn about the IRS’s treatment of conservative groups seeking 501(c)(4) status.
At a House Financial Services hearing, Lew, previously Obama’s chief of staff, insisted that it was natural for him not to keep a close eye on the IRS. “Let’s not get into the world where we have the White House jump into the administration of our tax system,” he said.
But Republicans weren’t buying it.
“You’re dodging me,” said Rep. Sean Duffy (R-Wis.), drawing complaints from Democrats that he was badgering Lew. “The bottom line is you knew before the IG’s report came out that the IRS was targeting Americans.”
In the Oversight hearing room, Republicans were raising a number of questions about George’s work.
Issa noted that the committee had interviewed an IRS staffer, Holly Paz, the day before the hearing, and found out that she had sat in on many of the interviews conducted for the inspector general’s audit — a development Issa called shocking.
The California Republican also noted that the IRS’s own internal investigation had reached similar findings as the inspector general, and chided George for not informing lawmakers about the targeting his office knew about by July 2012.
But George stood by his actions: “It would be impractical for us to give you partial information which may not be accurate,” he said. “It would be counterproductive.”
Lawmakers from both parties also piled on Shulman, with Cummings and Rep. Stephen Lynch (D-Mass.) wondering why the former IRS commissioner did not correct his statement that the agency wasn’t targeting anyone.
— Updated at 8:28 p.m.