The committee’s top Democrat, Rep.Elijah Cummings (Md.), said in a letter to House Speaker John Boehner (R-Ohio) that Republicans have already botched any plans they might have for contempt actions against Lerner, who headed an IRS division that processes applications for tax-exempt status.
Cummings, citing opinions from two legal experts and “Supreme Court case law,” said Republicans cannot pursue contempt charges against Lerner because of how the committee’s chairman, Rep. Darrell Issa (R-Calif.), abruptly adjourned a hearing with the former official last week.
The letter said Issa “failed to take the basic — but Constitutionally required — steps necessary to hold [Lerner] in contempt,” since the chairman ended the hearing without overruling Lerner’s Fifth Amendment assertion and without “clearly directing her to answer the committee’s questions.”
Issa’s office refuted Cummings’ arguments on Wednesday and signaled that Republicans have assembled legal opinions of their own. “This analysis, solicited on a partisan basis, is deeply flawed and at odds with the House’s own expert legal counsel to the committee,” Issa spokesman Frederick Hill said in a statement.
Hill noted that the panel determined — in a party-line vote — that Lerner had waived her Fifth Amendment right by declaring innocence before refusing to answer questions at a previous hearing. He also said Issa “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.”
Boehner indicated during a news conference on Thursday that House attorneys are likely to release an opinion on the contempt issue soon. “I and the House counsel reject the premise of Mr. Cummings’ letter,” he said. “I do not agree with that analysis in any way, shape or form. I’ve made clear on more than one occasion that Ms. Lerner should either testify or be held in contempt.”
Lerner has repeatedly invoked her Fifth Amendment right instead of testifying about the development of controversial screening methods the IRS used for determining which nonprofit advocacy groups deserved extra scrutiny. An inspector general determined the efforts inappropriately targeted organizations based on their policy positions.
In addition to laying out legal arguments, Cummings revealed new details behind a disagreement between Issa and Lerner’s lawyer over whether the former IRS official had agreed to testify less than a week before the latest hearing. Issa said on “Fox News Sunday” prior to the hearing that the attorney had given him assurances about the matter.
The lawyer, William Taylor, denied Issa’s claim shortly after the TV interview. He later explained in a letter to the committee that Issa’s staff “asked if I would provide a proffer of the testimony she would give if immunized, and I agreed to do that.”
Taylor also told Issa that Lerner would consider testifying at the hearing if it was delayed one week because the attorney was expecting to travel during the scheduled time.
Cummings criticized the chairman for not taking that opportunity, saying: “His actions make it appear that he is more interested in having an unnecessary contempt fight than in actually obtaining the information and testimony he claims he wants.”
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