The outcome of the upcoming contempt vote is all but assured for the Republican-controlled committee, which already determined in a party-line vote last year that Lerner waived her right not to testify by declaring innocence before declining to answer questions at a June 2013 hearing.
The panel’s top Democrat, Rep. Elijah Cummings (D-Md.), has argued that Republicans cannot legally pursue contempt charges against the former IRS official because they did not explicitly overrule her Fifth Amendment assertion or clearly direct her to answer the committee’s questions.
Committee Chairman Darrell Issa (R-Calif.) contends that Cummings is “wrong on the facts and the law.” He said the committee effectively overruled Lerner’s Fifth Amendment by voting that she had waived her Fifth Amendment right, and that his office advised Lerner that she could face contempt charges if she refused to answer questions at a March hearing.
The House’s general counsel issued a memo last week largely agreeing with Issa’s position, but 25 legal experts, including a former House attorney and three former Supreme Court clerks, have backed Cummings’ theory.
Even if the committee votes in favor of the contempt resolution, the full House would still need to vote on the matter before Lerner could face meaningful consequences. To understand more about how this works, let’s take a quick look at the basics of contempt.
What is contempt of Congress?
Any action that directly obstructs Congress’s ability to exercise its Constitutional powers can arguably count as contempt, according to a report this year from the nonpartisan Congressional Research Service.
In recent times, Congress has used its contempt powers with witnesses who refuse to appear before a committee or produce requested documents following a subpoena, the report said.
What are Congress’s options for noncompliant officials?
1.) Congress can seek a civil judgement from a federal court declaring that the individual is obligated to comply with its subpoena. The Congressional Research Service said that such action “may prove an inadequate means of protecting congressional prerogatives due to the time required to achieve a final, enforceable ruling in the case.” In other words, the current legislative session could expire or the contempt debate could fizzle out before it moves through both the House and the court system.
2.) Congress can detain and imprison individuals who do not comply with subpoenas. The report described this option as “long dormant,” meaning lawmakers haven’t used it in a very long time.
3.) Congress can seek criminal prosecution against the noncompliant individual. The Congressional Research Service said any efforts to punish executive branch officials for noncompliance through criminal contempt “will likely prove unavailing in many, if not most, circumstances” because the Justice Department generally declines to prosecute those cases.
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