The ex-official has declined to testify before Congress about the targeting controversy at two hearings. During one of the appearances, she said she had done nothing wrong before asserting her Fifth Amendment right.
The House Ways and Means Committee is scheduled to vote Wednesday morning on whether to refer Lerner to the Justice Department for criminal prosecution based on alleged actions with the IRS that the panel has not disclosed. The House Oversight and Government Reform Committee plans to vote Thursday on a resolution to hold her in contempt of Congress.
Republicans on the Ways and Means Committee claim to have evidence that Lerner helped direct IRS targeting against conservative groups, according to a House aide with knowledge of the panel’s proposed referral to the Justice Department. They also contend that Lerner misled investigators and exposed private taxpayer information, the aide said.
Wednesday’s committee vote will take place in a closed-door session, because lawmakers plan to discuss protected taxpayer information that only members of certain panels can access. Some of the taxpayer details will become public if Republicans agree to pursue prosecution.
Democrats have signaled opposition to Wednesday’s vote. “This would be the first use of the committee’s power to disclose confidential taxpayer information since the release of Richard Nixon’s tax returns in 1974, and I have serious concerns about the appropriateness of such action,” Rep. Sander Levin (D-Mich.), the panel’s ranking member, said in a statement.
Lerner’s attorney, William Taylor, said Wednesday that the referral is “just another attempt by Republicans to vilify Ms. Lerner for political gain,” noting that the Justice Department is already investigating the IRS targeting matter.
“Ms. Lerner has done nothing wrong,” Taylor said. “She did not violate any law or regulation. She did not mislead Congress. She did not interfere with the rights of any organization to a tax exemption. Those are the facts.”
Democrats say Thursday’s contempt vote is unlikely to produce a successful prosecution, even if the House oversight committee passes the resolution.
They point to a new report from the nonpartisan Congressional Research Service that shows federal courts have rarely upheld contempt convictions against individuals who refuse to testify before Congress.
According to the CRS analysis, the courts have overturned every contempt conviction against individuals who refused to testify before Congress dating back to at least 1951. The agency acknowledged that its research was not necessarily exhaustive and that “it is possible that some relevant cases were missed.”
Democrats on the oversight panel plan to release a report on Wednesday arguing that the Republican contempt effort lacks “historical precedent” and that the committee’s chairman, Rep. Darrell Issa (R-Calif.), has not taken the steps legally required for pursuing charges against Lerner.
“We oppose Chairman Issa’s efforts to re-create the oversight committee in Joe McCarthy’s image, and we reject his attempts to drag us back to that shameful era in which Congress tried to strip away the Constitutional rights of American citizens,” the Democratic report says.
Republicans on the oversight committee contend that Lerner’s testimony is critical to their investigation of the IRS’s controversial actions. “Without her testimony, the full extent of the IRS’s targeting of Tea Party applications cannot be known, and the committee will be unable to fully complete its work,” the group said in a report released Tuesday.