House Oversight Committee Chairman Darrell IssaDarrell Edward IssaHow lawmakers aided the Afghan evacuation Dozens of Sacramento students remain in Afghanistan after US pullout, district says Seven San Diego-area families evacuated from Afghanistan after summer trip abroad MORE (R-Calif.) blew his chance to hold former IRS official Lois Lerner in contempt of Congress at a hearing last week, according to a new legal analysis being circulated by Democrats.
The analysis, written by Morton Rosenberg, formerly of the Congressional Research Service, says that Issa dropped the ball by not making it clear to Lerner that she risked contempt by not answering his questions.
Rep. Elijah CummingsElijah Eugene CummingsFormer GOP congressional candidate Kimberly Klacik suing Candace Owens for defamation Former Cummings staffer unveils congressional bid McCarthy, GOP face a delicate dance on Jan. 6 committee MORE (Md.), the Oversight Committee's top Democrat, sent the analysis to Speaker John BoehnerJohn Andrew BoehnerLobbying world A new kind of hero? Last week's emotional TV may be a sign GOP up in arms over Cheney, Kinzinger MORE (R-Ohio) on Wednesday.
"It appears that his actions last week in closing down the hearing had significant negative legal consequences that now bar the House of Representatives from successfully pursuing contempt proceedings," Cummings wrote.
Boehner rejected the Democrats’ argument and said contempt charges for Lerner remain on the table.
“I and the House counsel reject the premise of Mr. Cummings’s letter. I do not agree with that analysis in any way, shape or form," Boehner said Thursday at a news conference in the Capitol. "I’ve made clear on more than one occasion that Ms. Lerner should either testify or be held in contempt.”
Boehner added that he was certain the House counsel would release its own opinion "at some point."
Rosenberg's analysis is the latest twist in the House's attempts to secure the testimony of Lerner, perhaps the central figure in the months-long investigation into the improper scrutiny the IRS gave to Tea Party groups seeking tax-exempt status.
Stan Brand, who was the House's general counsel when Democrats were in control in the 1970s and 1980s, signed on to Rosenberg's memo.
Boehner has said that he believes Lerner, who headed an IRS division that dealt with tax-exempt groups, should be held in contempt.
But plans to move forward on potential charges are on hold for now, after Issa cut off Cummings's microphone during a spat at the end of the March 5 hearing. Issa later apologized to Cummings.
Rosenberg and Brand say that based on a nearly six-decade-old Supreme Court precedent, Issa did not lay the groundwork to hold Lerner in contempt.
Lerner invoked her Fifth Amendment rights against self-incrimination for a second time before House Oversight last week, after first taking the Fifth in May 2013. Oversight Republicans ruled in June that Lerner waived her rights by proclaiming her innocence in an opening statement.
According to Rosenberg, Issa might have lost the chance to hold Lerner in contempt because he only told her that she may face charges if she didn't answer his questions. What he needed to do, Rosenberg and Brand say, is make clear that a refusal to answer would lead to contempt charges.
"In sum, at no stage in this proceeding did the witness receive the requisite clear rejections of her constitutional objections and direct demands for answers nor was it made unequivocally certain that her failure to respond would result in criminal contempt prosecution," Rosenberg's analysis said.
"The absence of such a demand," they added, "is fatal to any subsequent prosecution."
But a spokesman for Issa dismissed the legal analysis, and gave no suggestion that the chairman wouldn't proceed at some point on contempt charges. Lerner's attorney, Bill Taylor, has made clear that he thinks Issa's investigation is thoroughly partisan, and has said he doesn't see a path for the committee to get his client's testimony.
"This analysis, solicited on a partisan basis, is deeply flawed and at odds with the House's own expert legal counsel to the Committee," said the spokesman, Frederick Hill.
"At the hearing, Chairman Issa specifically informed Ms. Lerner of the Committee's formal determination that she had waived her Fifth Amendment right not to answer questions. Before asking a series of questions, he then offered her fair warning that a refusal to answer could lead to a contempt finding, which ultimately must be made by the full House of Representatives."
— This story was updated at 12:47 p.m. on March 13.