Contempt vote fell almost entirely along party lines in Republican-controlled House
Former IRS official Lois Lerner has exercised her Fifth Amendment rights in testimony
The vote sets up a possible legal fight between Congress and the Obama administration
The House has aggressively investigated IRS targeting of conservative groups
Acting on a conservative battle cry and potentially triggering a court battle with the Obama administration, the Republican-led House voted Wednesday to hold former IRS official Lois Lerner in contempt of Congress for refusing to answer questions about her agency’s targeting of conservative and other groups.
The 231-187 vote fell almost entirely along party lines, a decision that cut across three sharp divides: balance of power issues between the branches of government, political questions over the IRS scandal, and a Constitutional debate over Lerner’s individual Fifth Amendment rights.
Lerner is in the middle of that trio. Until she retired last year, she ran the IRS division in charge of tax exempt status. An inspector general’s report concluded her staff had inappropriately targeted Tea Party and other groups for extra scrutiny.
The term “progressive” was also flagged but the inspector general report indicated that conservative terms drew more attention from the IRS.
The Fifth Amendment question
For nearly a year, Lerner has refused House requests to testify on the matter, citing her Fifth Amendment right against self-incrimination.
Republicans insist that doesn’t apply here, that she waived the right by first asserting her innocence when she appeared before the House Oversight Committee last May.
“Mrs. Lerner made 17 separate factual assertions before invoking her right to remain silent,” proclaimed Rep. Richard Nugent, Republican of Florida, as he opened up Wednesday’s debate. “You can’t make selective assertions and still invoke your Fifth Amendment right.”
Lerner’s attorney, William Taylor, has dismissed that argument repeatedly and sent a statement rejecting it again Wednesday.
“Today’s vote has nothing to do with the facts or the law,” Taylor wrote. “Its only purpose is to keep the baseless IRS ‘conspiracy’ alive through the midterm elections. Ms. Lerner has not committed contempt of Congress. She did not waive her Fifth Amendment rights by proclaiming her innocence.”
As they reject Lerner’s Constitutional argument, Republicans see an IRS scandal that remains highly flammable on the right.
To conservatives, it is a frightening case of a government agency suppressing political thought from its opponents, mixed with question marks about whether anyone in the White House was involved.
“If we don’t hold Lois Lerner accountable for her actions,” said Rep. Lee Terry, Republican of Nebraska, “then we’re sending a message to future administrations that this type of Nixonian behavior is acceptable.”
The problem for Republicans has been that as their base clamors for action and high-ranking heads to roll on the scandal, neither Lerner nor anyone at the IRS has provided information linking the controversy to the White House.
As determined as Republicans have been, Democrats have been equally strong in response.
“This is ‘sooo’ blatantly political,” Rep. Jim McGovern, Democrat of Massachusetts, dragging out his comment for emphasis. “House Republicans are again playing to the cheap seats with hyperpartisan witch hunts.”
McGovern and other Democrats have raised the charge of McCarthyism in the case, arguing that little new information in the IRS scandal has come to light in recent months and accusing Republicans of using the case to distract from other issues.
Next: Congress, White House in court?
As the politics vibrate, Wednesday’s contempt vote set off a specific process in the bureaucratic machine. Now the contempt charge moves to the Justice Department where the U.S. Attorney for Washington must decide whether to prosecute her.
If charges are not pursued, House Republican leaders face another choice: Will they file a lawsuit to try and force the Justice Department to take action? It is certainly possible.
That is the precise course of events that followed when the House charged Attorney General Eric Holder with contempt in 2012 for refusing to turn over documents in the botched “Fast and Furious” gun-running investigation.
In that case, Holder and the White House asserted executive privilege. That has not happened yet in the Lerner case.
But Republicans are clearly teeing up a battle with the attorney general and President Barack Obama.
Immediately following the Lerner contempt vote, the House voted 250-168 to call on Holder to remove the IRS investigation from the Department of Justice and instead appoint a special counsel to look into the scandal.