Democrats: Issa's Gaffe Will Block Lerner Contempt Charge

Thursday, 13 Mar 2014 02:11 PM

By Melissa Clyne

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Democrats are rushing to the aid of former IRS official Lois Lerner, saying GOP Rep. Darrell Issa fumbled the opportunity to force Lerner to answer questions about the IRS’ targeting of conservative groups, Politico reports.

In a five-page memo from constitutional law expert Morton Rosenberg to Elijah Cummings, the ranking Democrat on the House Committee on Oversight and Government Reform, Rosenberg writes that Issa failed to provide Lerner — the former director of Exempt Organizations of the Tax-Exempt and Government Entities Division of IRS — due process because he did not explicitly inform her that if she failed to answer the committee’s questions, she would face criminal contempt charges.

“At no time during his questioning did the Chair explicitly demand an answer to his questions, expressly overrule her claim of privilege, or make it clear that her refusal to respond would result in a criminal contempt prosecution,” Rosenberg wrote.

Lerner first appeared to testify before the committee on May 22, 2013, where she made an opening statement but then refused to answer any questions, invoking the Fifth Amendment right against self-incrimination. Issa dismissed her, subject to recall, in order to consult with the Justice Department.

Rosenberg concludes that at the end of Lerner’s testimony, there was "no express Committee determination rejecting her privilege claim nor an advisement that she could be subject to a criminal contempt proceeding” just “some hint of granting statutory use immunity that would compel her testimony."

Republicans scoffed at Rosenberg’s argument.

“Uttering certain talismanic words is not required before finding someone in contempt for the failure to answer questions. … Ms. Lerner was not going to answer any questions — regardless of whether she was directed to or not,” said Oversight member Trey Gowdy, a South Carolina Republican who is also a lawyer.

Democrats also sought the advice of Stan Brand, former general counsel for the House of Representatives in the 1980s, who tells CBS News that the technicality will save Lerner from contempt charges. Brand said he thinks Republicans are more interested in style than substance anyway.

"I think what they're after is political theater, and that's what they got," he told CBS. “(The committee) could have granted her immunity and they'd already have her testimony by now."

Frederick Hill, Republican Oversight chairman, accused Democrats of playing politics and characterized the party’s position as “deeply flawed and at odds with the House’s own expert legal counsel to the Committee.”

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