House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) is inclined to recall Internal Revenue Service official Lois G. Lerner to testify before his panel, but will await recommendations from committee lawyers, the nonpartisan House Counsel, other outside legal experts and committee Democrats before making a final decision, he said Thursday.
Lerner invoked the Fifth Amendment in her refusal to testify before the oversight panel Wednesday, but the fact that she gave a lengthy opening statement defending herself and verbally verified the contents of a document prompted Issa and others to suggest she had inadvertently waived her right against self-incrimination.
Issa told reporters Thursday that he is inclined to agree with GOP lawmakers who raised a point of order during the hearing and objected to Issa's decision to dismiss Lerner.
"This is a big thing that we want to get right," Issa said Thursday. "We were prepared to accept her asserting her Fifth Amendment rights, but she did these other things and we just want to have it right."
Issa decided to recess Wednesday's hearing instead of formally adjourning the proceedings as he awaits the recommendations of lawyers.
Pressed on whether he would recall Lerner, Issa said that "Procedurally, I believe it may in all likelihood be necessary to finish the hearing. If it’s not, I wouldn’t do it, but if it is, we’ll bring her back for that reason."
In effect, Issa and his lawyers are mulling whether Lerner’s detailed opening statement could be interpreted as a “subject matter waiver,” meaning she had made factual statements about the case, which then opened the door for the committee to ask her for more details.
But Lerner’s lawyer, William W. Taylor, disagrees with this analysis, and it is unclear whether she will willingly return to testify. If she refuses, the committee would have to order her in contempt of Congress, and a judge would have to rule in favor of the order if it's challenged.
Rep. Elijah Cummings (Md.), who is the committee's ranking Democrat, said he didn't think Issa "wants to go that far" in seeking a judge's opinion.
"We are in search of the truth, because we are trying to reestablish trust in the IRS. But in the United States, there’s something called the United States Constitution that we must adhere to even under these trying times," Cummings said.
Cummings, an attorney, said he had "absolutely no doubt" that Lerner did not waive her Fifth Amendment rights.
In the course of her opening statement, Lerner, the head of the IRS division on tax-exempt organizations, told members of the committee, “I have not done anything wrong. I have not broken any laws, I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee.”