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May 08, 2014

What Happens Next For Lois Lerner?

I thought I'd expand on my previous posts (see here and here) since some folks still seem confused.

Yesterday, the House, in a bipartisan vote, found former IRS Exempt Organizations Director Lois Lerner in criminal contempt of Congress for refusing to testify about the IRS targeting of conservative groups.

Rep. Issa explains:

“To preempt the release of an independent investigation, Ms. Lerner publicly admitted that the IRS division she led had targeted conservatives. After waiving her right to protection from self-incrimination, Lerner had a choice: testify fully and truthfully about what occurred or face criminal contempt. Ms. Lerner refused to testify even after her attorney told Congress she would do so.

“Unless the President decides to assert executive privilege, there is no precedent for the U.S. Attorney for the District of Columbia to do anything but pursue this criminal case. Absent political interference by the Administration, this legally binding action – as well as a separate resolution calling for a special prosecutor to take over the Main Justice Department’s tainted and dormant investigation – require the Justice Department to take action.”

There's a lot of information packed in there. Here are the 7 issues that will impact the outcome.

(1) Lerner planted the question that revealed the IRS targeting in order to preempt an internal investigation report. It has been largely forgotten now, but this scandal first came to light because Lerner masterminded a roll-out strategy for the scandal because an inspector general's report that detailed the targeting was imminent. The first step in that strategy was for Lerner to ask a friend to pose the question at a conference so that Lerner could explain away the scandal before the IG report became public.

(2) Lerner may have waived her Fifth Amendment right against self-incrimination. Virtually all the commentary I see on this from conservative websites (and from Rep. Issa) is, at the very least, incomplete. Part of the difficulty is that application of the right against self-incrimination before Congress is an undeveloped area of law. I cannot emphasize that enough. We just don't know whether she waived her right against self-incrimination because there is scant judicial guidance on this, and what guidance does exist is contradictory. We can take civil and criminal case law as a guide to self-incrimination before Congress, but the bottom line is that witnesses before Congress can pretty much get away with whatever Congress will let them get away with. There were several missteps here.

First, Issa let Lerner go with a blanket invocation of the Fifth Amendment the first time she came before the committee. Such blanket invocations are foreign to civil and criminal cases, so Issa let congressional procedure deviate from civil and criminal procedure right out the gate. He tried to clean it up later by issuing a statement saying she'd waived the Fifth, but it's unclear whether a court will accept that (again, there's no precedent either way).

Second, Issa eventually tried to remedy this problem and make the congressional procedure more closely conform to case law by calling Lerner back and getting her to invoke the Fifth Amendment to specific questions. Unfortunately, case law provides that a witness may waive the right against self-incrimination in one proceeding, and then invoke it later at a different proceeding on the same subject. So even if Lerner waived the right at the first hearing, it will be tough to argue that she waived it for the second hearing, at least if we're applying civil and criminal case law.

Civil case law has also held that a witness may make exculpatory statements without waiving the Fifth Amendment in the situation where the witness is both compelled to appear (i.e., the testimony is not voluntary) and the witness makes no incriminating statements prior to the waiver. Both of those things appear to be true here, but as I wrote above, this was a congressional proceeding, not a civil trial. The difference may be crucial to resolving whether Lerner waived and there just isn't any judicial guidance on it. My gut is that the courts will simply default to the easiest route and apply their own civil precedent to Congressional proceedings.

(3) Lerner has been cited for criminal contempt. Criminal contempt is not the same thing as civil contempt. A criminal contempt conviction ends in a fine or jail time or both. It does not end in the witness being compelled to testify. If the House wants to actually get Lerner's testimony, it will have to sue for civil contempt and win the waiver argument described above. This is the procedure the House took to try and get AG Holder to cough up Fast & Furious information, but that case is still bogged down in court.

(4) Lerner has indicated that a crime occurred. There have been some suggestions that Lerner is "innocent until proven guilty" and that we cannot take a negative inference from her invocation of the Fifth Amendment. This is false. It is entirely appropriate to take a negative inference from someone invoking the Fifth in civil proceedings or before Congress. She had no reason to do so unless she believed a crime had been committed. We can take Lerner at her word when she indicated that she believes a crime had been committed.

(5) The law requires that the U.S. Attorney present the matter to a grand jury. 2 U.S.C. § 194 provides that in these cases: "it shall be the duty of the . . . Speaker of the House . . . to certify, and he shall so certify, the statement of facts aforesaid under the seal of the . . . House . . . to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action."

However, some U.S. Attorneys have resisted fulfilling that duty. Previously, the only circumstance in which U.S. Attorneys have declined to present the matter to a grand jury is when the administration invokes executive privilege. That's why Issa mentions executive privilege in his statement. He's pre-butting a potential objection from the Holder Department of Justice by pointing out that there has never been an assertion of executive privilege in Lerner's case. Does that mean that the U.S. Attorney will actually present the matter to a grand jury here? No. Expect resistance, the "political interference" Issa mentions.

(6) Lerner could cut a deal. Reports have indicated that Lerner was close to cutting a deal just prior to being called to testify the second time. Obviously, if some kind of deal is made, the contempt matter ends. Such a deal could be made at any time, but is unlikely to come while we wait and see what the U.S. Attorney decides to do. The chance for a deal drops to near zero if the U.S. Attorney declines to present the matter to a grand jury.

(7) Issa could seek civil contempt lawsuit authorization at any time. In the case that the U.S. Attorney decides not to do his duty, Issa could seek authorization (first in the committee and then in the full chamber) to file a civil lawsuit seeking to compel Lerner's testimony. This has only ever happened to three people: Harriet Miers, Joshua Bolton, and Eric Holder.


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posted by Gabriel Malor at 09:50 AM

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