Cleta Mitchell: Dems Will Lose on Lerner Contempt Vote and in Court

Tuesday, 06 May 2014 05:46 PM

By Joe Battaglia

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Legal expert Cleta Mitchell says she is not surprised that Democratic leaders are trying to block the impending contempt vote on former Internal Revenue Service official Lois Lerner, and says a court challenge by Lerner would be unsuccessful.

Lerner, who retired from the IRS last fall, headed the division that targeted conservative groups for extra scrutiny as they sought tax exemptions. She has refused to answer questions from Darrell Issa, chairman of the House Oversight and Government Reform Committee, prompting the contempt vote.

Mitchell, a lawyer with Foley & Lardner LLP, told J.D. Hayworth on "America's Forum" on NewsmaxTV that the origin of the IRS scandal lies with House and Senate Democrats who "need to look in the mirror" before rallying to try to stop the contempt vote.

"A number of Democratic members of Congress run to the IRS very proudly, publicly, demanding that the IRS 'do something about these conservative organizations' that sprung up all over the country to hold their elected officials accountable and to challenge the activities and actions and votes that these Democrats were taking in Congress, like passing Obamacare and voting for the stimulus package and thrusting our country into trillions of dollars of debt," Mitchell said.

"They didn't like it and they still don't like. They've done everything they can do to try to thwart the investigation of the IRS, both of the House and the Senate. These Democrats have completely abandoned their constitutional [obligation] . . . to conduct proper oversight of the executive branch of government," she said Tuesday.

Story continues below video.



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At the fore of the Democratic effort urging members to vote against the contempt motion is Minority Whip Steny Hoyer of Maryland, who is confident that even if the motion is approved, Lerner will ultimately not be compelled to testify be
fore Issa's panel.

"People want to read the Constitution right up until the time it makes them uncomfortable with the rights that they don't think they ought to have," Hoyer said. "I think if it passes, the courts will sustain Ms. Lerner's claim of Fifth Amendment privileges."

Mitchell, however, thinks the courts would ultimately find that Lerner waived her Fifth Amendment rights by selectively answering questions on the subject.

"Lois Lerner came before the House Oversight and Government Reform Committee," Mitchell said. "She gave an opening statement in which she said, I'm not guilty, I haven't done anything wrong. And then, when they started asking her questions to explore, to cross-examine her on her testimony, she said, no, I'm going to invoke my Fifth Amendment right not to incriminate myself. So, that's when she waived her right the first time.

"The second way in which she waived her Fifth Amendment privilege was when she voluntarily, willingly, agreed to meet with the Department of Justice lawyers which we now know that she did.

"Now, these are the only people on the earth who can bring criminal charges against her. She met with them. She presumably answered their questions, but she will not answer questions publicly from the people's elected representatives.

"To me, this is a pretty clear case of how she has waived her Fifth Amendment rights not to testify and not to answer questions. She just is being selective, and the one place she will not answer questions is with anyone that she thinks might ask her hard questions. That would be the House Republicans."

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