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March 27, 2014

Lois Lerner’s New Lawyer

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The latest action of Representative Elijah Cummings (Md.), the ranking Democratic member of the House Oversight and Government Reform Committee, makes one wonder whether he has received a retainer from Lois Lerner. Lerner, of course, is the former IRS official at the heart of the scandal over the targeting of conservative organizations. Cummings appears to be acting as her virtual counsel. He’s been doing everything he can to prevent her from testifying before the committee that is trying to investigate what happened and to protect her from a contempt citation.

There were many media reports about the confrontation that Cummings got into on March 5 with the committee chairman, Darrell Issa (R., Calif.), after Lerner again asserted her Fifth Amendment right against self-incrimination and refused to answer any questions. Cummings followed this up with a letter to Speaker John Boehner (R., Ohio) on March 12 in which he wrongfully claimed that the House of Representatives was barred “from successfully pursuing contempt proceedings” against Lerner.

Cummings relies on a legal opinion that he says he solicited from two lawyers, Morton Rosenberg and Stan Brand, who formerly worked at the Congressional Research Service and the House of Representatives. Cummings claims that Issa supposedly “committed a ‘fatal’ procedural error by failing to meet the prerequisites required by the Supreme Court in order to hold a witness in contempt.” He also claims that, according to his “experts,” even if Issa issues a new subpoena for Lerner, the committee cannot claim that Lerner “waived her Fifth Amendment rights in the previous proceedings.”

The problem with Cummings’s letter and his experts’ legal opinion is that they are wrong. He makes a very basic, “fatal” error on page four of his letter when he claims that — again, according to his experts — “the courts have long recognized that a witness may waive the Fifth Amendment right to self-incrimination at one proceeding, and then invoke it later at a different proceeding on the same subject.”

As I previously pointed out, while that is the rule in most federal courts, it is not the rule in the District of Columbia. In 1969, the Court of Appeals of the District of Columbia specifically ruled in Ellis v. U.S. that “once a witness has voluntarily spoken out,” she cannot assert the Fifth Amendment in a subsequent proceeding with regard to any information she already voluntarily gave to the government.

Cummings fails to mention in his letter that, in a press conference after the March 5 hearing, Lerner’s lawyer admitted that his client had already given a “lengthy interview” to the Justice Department. That means that she was improperly asserting the Fifth Amendment on March 5 to the extent that she was refusing to give the committee the same information she had already given federal prosecutors.

Cummings also argues that Lerner cannot be held in contempt because she did not “receive the requisite clear rejections of her constitutional objections . . . nor was it made unequivocally certain that her failure to respond would result in criminal contempt prosecution.” In plain English, Cummings claims that Issa neither told Lerner that the committee was rejecting her Fifth Amendment claim, nor directed her to answer the questions posed to her, nor warned her that she risked a contempt citation if she refused to do so.

But as Issa points out in a March 14 letter to Cummings, Issa specifically told Lerner at the March 5 hearing that, already on June 28, 2013, the committee approved a resolution “rejecting Ms. Lerner’s claim of Fifth Amendment privilege based on her waiver.” In fact, on February 25, 2014, the committee sent Lerner’s counsel a letter stating that the committee “explicitly rejected” his client’s Fifth Amendment claim. At the March 5 hearing, Issa also warned Lerner that if she continued to refuse to answer questions while she was under a subpoena, “the Committee may proceed to consider whether she should be held in contempt.”

Cummings and his lawyer “consultants” rely on three U.S. Supreme Court cases – Bart v. U.S. (1955), Quinn v. U.S. (1955), and Emspak v. U.S. (1955) – to claim that Issa did not use the specific language needed to overrule Lerner’s assertion of the Fifth Amendment and to warn her that she risked contempt. According to Cummings, Lerner was “left to guess whether or not the committee had accepted” her objection to answering any questions.

Their reliance on these cases is misplaced. As Issa notes in his letter, there are no “magic words” needed by a congressional committee to apprise a witness that she will be held in contempt if she does not answer questions.  In fact, in the Quinn case, the Supreme Court said that just as a witness does not have to use any particular form of words to assert her Fifth Amendment privilege or objection to answering a question, “so also the committee is not required to resort to any fixed verbal formula to indicate its disposition of the objection. So long as a witness is not forced to guess the committee’s ruling, he has no cause to complain.”

In the Bart case, the Supreme Court dismissed a contempt citation because of the committee’s “consistent failure” to advise the witness of the committee’s position on his refusal to answer questions: The “petitioner was left to speculate about the risk of possible prosecution for contempt; he was not given a clear choice between standing on his objection and compliance with a committee ruling.”

No reasonable judge could review the record and come to any conclusion other than that Lerner and her lawyer were advised both orally and in writing that the House Oversight and Government Reform Committee had rejected Lerner’s assertion of the Fifth Amendment and that she risked a contempt citation if she chose once again to refuse to answer the committee’s questions. This is all the more clearly true since we now know that Lerner already provided detailed information to the Justice Department  before her appearance at the House committee on March 5. Under the applicable rules of the federal courts in the District of Columbia, the interview she gave to prosecutors meant that she waived her right to assert the Fifth Amendment

Lois Lerner has so far refused to cooperate with the committee. Elijah Cummings is doing everything he can to help her not have to answer questions about the political targeting of conservative organizations. So the real question here is this: What is Cummings afraid would come out if Lerner were forced to testify? And why won’t the current head of the IRS, John Koskinen, who was confronted by Issa in another hearing on March 26, turn over copies of Lerner’s e-mails?

 - Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation

Originally appeared in National Review Online

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