Why ex-IRS official Lerner likely faces charges after taking the Fifth

On Thursday, a House committee is expected to take contempt action against former Internal Revenue Service official Lois Lerner, based on how she asserted her Fifth Amendment rights. But would Lerner face jail time in the case?

Prison time seems unlikely, but Lerner’s case could trigger a public debate about the fine points of taking the Fifth Amendment. And with the Republicans controlling the House, contempt of Congress charges would seem to be imminent.

Lerner led an IRS division that reviews applications for tax-exempt groups, and she was called to testify before Congress about the alleged profiling of conservative groups for extra scrutiny by the IRS.

A House committee issued a subpoena compelling Lerner to testify before it.

Lerner, the former head of the IRS tax-exempt organizations office, said in advance of her March 2013 testimony that she would assert her Fifth Amendment privilege and refuse to answer questions from House members during committee hearings about the IRS’s targeting of conservative nonprofit groups.

However, Lerner then read an opening statement at the hearing, setting off a debate about whether she had waived her Fifth Amendment rights by reading the statement.

Republicans on the committee believed the opening statement invalidated her right to take the Fifth Amendment during testimony, and her refusal to speak since is an act of contempt.

If Lerner is found in contempt by a vote of the entire House, then she could theoretically face criminal prosecution, and under an obscure legal provision she could be imprisoned by the House itself .

Under a long-dormant theory called inherent contempt, not used since 1935, the House has the power to have someone brought in front of it by the Sergeant-at-Arms for trial at the bar. If the person doesn’t testify or is found guilty of contempt, he or she can be detained for the entire length of the congressional session, if needed.

The Congressional Research Service says the practice has fallen out of favor because it is time consuming, but a House select committee could theoretically conduct a similar procedure.

Lerner also could be charged under a criminal contempt statute, which would send the matter to the executive branch for criminal prosecution. That would put the ball in the court of Attorney General Eric Holder (himself a target of a congressional contempt effort). The Holder case from 2012 is still in the court system.

Or in a more likely scenario, Congress can rely on the judicial branch to enforce a congressional subpoena under a civil judgment from a federal court. If Lerner didn’t comply with a ruling against her, she could face contempt of court charges and not contempt of Congress charges.

A key part of any Lerner case would be the Fifth Amendment. House Oversight and Government Reform Committee chair Darrell Issa and the committee’s top Democrat, Elijah Cummings, disagree about the Fifth as the basis for the contempt charges.

At Issa’s request, the House Office of General Counsel issued an opinion that Issa’s committee is well within its legal rights to say Lerner lost her Fifth Amendment protection when she made her introductory statement.

The General Counsel disputed a memo prepared for Cummings by a former CRS attorney, which argued the House committee didn’t have a legal case about Lerner’s Fifth Amendment statements. The General Counsel said Lerner had been “duly apprised” that the committee had rejected her Fifth Amendment claims.

Cummings argued in a letter to House Speaker John Boehner that Issa didn’t take the necessary actions at a March 2014 hearing when he abruptly ended a hearing on the matter. He said Issa “failed to take the basic — but Constitutionally required — steps necessary to hold [Lerner] in contempt,” Cumming said, because Issa ended the hearing without  “clearly directing her to answer the committee’s questions.”

Cummings also listed comments from 25 legal authorities that disputed Issa’s claim that Lerner gave up her Fifth Amendment rights.

As for Lerner facing jail time if she is found in contempt of Congress, the last person to receive a prison sentence in a related case was Rita Lavelle in 1983. The former EPA official won her contempt case in court, but she was found guilty on a perjury charge and served a short sentence.

But Lerner faces other potential legal issues. The House Ways and Means committee recommended charges on Wednesday against Lerner for her alleged actions in targeting Tea Party groups. Lerner’s attorney has called the allegations “ridiculous.”

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