WASHINGTON -- Republicans on the House Oversight and Government Reform Committee voted on party lines Thursday to hold in contempt of Congress the former Internal Revenue Service official at the heart of the agency's inappropriate scrutiny of political nonprofits. This is the first time congressional lawmakers have acted to hold someone in contempt for asserting his or her Fifth Amendment rights since the McCarthy era.
Lois Lerner was in charge of the IRS' exempt organizations unit when it looked to the names of organizations -- rather than what they were doing, according to the IRS inspector general -- to select some for extra scrutiny in determining whether they were actually eligible for tax-exempt status. Most of the groups singled out were conservative.
Lerner twice refused to testify before the House Oversight Committee, first professing her innocence and then invoking her Fifth Amendment right against self-incrimination. Her refusal to answer questions infuriated Republicans, who insisted that she waived her rights when she asserted that she had done nothing wrong.
Rep. Trey Gowdy (R-S.C.) argued that Lerner made 17 separate statements of fact in her denials of wrongdoing and that such statements would have cost her opportunity to plead the Fifth in any regular court.
"That is a lot of talking for somebody who wants to remain silent. That's a lot of talking," Gowdy said. "Please tell me what constitutes waiver if saying 17 separate factual things does not."
Other Republicans on the Oversight Committee seemed to believe that Lerner is guilty of crimes and will face prosecution from the Justice Department, which is investigating the matter.
"One thing that's clear about Lois Lerner is she's going to understand her Miranda rights," said Rep. Patrick McHenry (R-N.C.), referring to the warning that police give suspects about their rights when they are arrested. That warning includes the right to remain silent.
The committee's Republicans voted unanimously to refer a contempt citation to the full House, which, assuming a similar party-line vote in the GOP-controlled chamber, would then be sent on to a federal prosecutor.
Democrats all voted against the referral, arguing that Oversight Committee Chairman Darrell Issa (R-Calif.) had "botched" the process repeatedly. They pointed to a letter signed by dozens of outside experts, including former top counsel for the House of Representatives, who argued Lerner hadn't waived her rights.
Issa, citing the opinion he received from the current House lawyer, said that the question of whether Lerner had waived her rights was far from clear, and that by voting for the contempt referral, members would ultimately be requiring a federal prosecutor to get a ruling on the matter.
"These are all issues that will, if we refer this contempt motion, be heard by a federal judge," Issa said. "The question is, should an independent arbitrator decide?"
The top Democrat on the Oversight Committee, Rep. Elijah Cummings (Md.), answered that it would have been good if Issa had allowed independent experts to testify to the committee Thursday so that members could hear informed legal advice.
Cummings noted that the committee was about to take a step last used in the days of the infamous House Un-American Activities Committee and Sen. Joe McCarthy (R-Wis.), when Congress tried to hold nine people in contempt for asserting their Fifth Amendment rights. The courts rejected all of the resulting cases.
"I cannot cast a vote that would place me on the same page of the history books as Senator Joseph McCarthy or the House Un-American Activities Committee. And I do not draw that comparison lightly," Cummings said. "Today, this committee is trying to do something that even Joe McCarthy could not do in the 1950s -- something virtually unprecedented."
Democrats also argued that if Issa really wanted to hear from Lerner, he could have taken advantage of several opportunities. Among them, Lerner's attorney had been negotiating testimony with Issa, and was seeking a week's delay, when Issa went on TV and said she would testify on schedule last month. She did not. Cummings and others also contended that Issa short-circuited a "proffer" from Lerner in which her lawyer, William Taylor III, said she would tell the committee what it wanted to know, but without actually testifying.
Rep. Tammy Duckworth (D-Ill.) argued that the committee could have granted Lerner immunity, removing the Fifth Amendment hurdle and allowing the committee to hear from Lerner whether any higher-ranking officials had ordered the IRS targeting, as many Republicans allege.
One of the outside experts who signed the letter on Lerner's rights told HuffPost that immunity would have been the surest, easiest method to learn what Lerner knows.
"You've got a midlevel person -- obviously Lerner is not the ideal target," said Gregory Gilchrist, a professor at the University of Toledo College of Law who has represented people in congressional investigations. "They can offer her immunity, and then she has to answer the questions. And they can get the information they want. That wouldn't be hard to do, and it's what you'd normally expect them to do with a midlevel person -- give immunity, get the information and proceed with the investigation."
Rep. Gerry Connolly (D-Va.) suggested that a legitimate probe to get to the bottom of IRS misdeeds had been driven by politics into an unfortunate situation in which Republicans were trying to strip someone's constitutional rights in the name of protecting constitutional rights.
"To call this proceeding ... Orwellian only begins to touch the surface of the process that has characterized this proceeding for the past year," said Connolly.
The full House will have to vote for contempt if the matter is to go to a federal prosecutor, who could then present a case to a grand jury. It's not entirely clear, however, that a prosecutor would be willing to move ahead, based on the past cases and the facts in Lerner's case, Gilchrist said.
"I just can't imagine that they would proceed with the case," Gilchrist said. "Unless the U.S. attorney takes a different view of the merits than I do, which I don't expect he will, I don't see any way this ends up in an actual charge."
Lerner's attorney, Taylor, reacted quickly to the vote, disparaging it in a statement as purely political and partisan:
We are not surprised by today’s partisan contempt vote. The notion that the majority is engaged in objective oversight or fact-finding is pure fiction. The vote is the latest event in the majority’s never-ending effort to keep the IRS story alive through this fall’s mid-term elections.
Ms. Lerner has done nothing wrong. 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. The Chairman and other members of the Committee accused her of wrongdoing before the first hearing. Nothing has changed.
The majority proceeds without regard to the harm it inflicts on innocent people, to the facts, and to fundamental constitutional rights.
Ms. Lerner did not waive her Fifth Amendment rights by proclaiming her innocence. There is not a court in this country that will hold Ms. Lerner in contempt of Congress.
This story has been updated with comment from Lois Lerner's attorney.
Michael McAuliff covers Congress and politics for The Huffington Post. Talk to him on Facebook.