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Former IRS official Lois Lerner can still be held in contempt of Congress despite Democrats’ claim that Republican Rep. Darrell Issa botched his chance to bring charges against her, according to a memo from the non-partisan House Counsel released Wednesday.
The memo, sent to the House Oversight and Government Reform Committee, is a response to a letter sent from the top Democrat on the committee who asserted that Republicans could not pursue contempt charges because of the way Issa dramatically cut off a hearing with Lerner on March 5.
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Rep Elijah Cummings, D-Md., cited two legal experts who argued that Lerner was not “made unequivocally certain that her failure to respond would result in criminal contempt prosecution,” and therefore could not be held in contempt.
But the House Counsel memo said that the lawyers cited by Cummings are incorrect, and it is still possible for Lerner to be held in contempt.
The Oversight Committee originally called Lerner to testify last May about reports that the IRS was targeting conservative groups. But after an opening statement asserting her innocence, she invoked her Fifth Amendment rights. In response, Republicans on the panel approved a resolution that said she waived those rights by giving an opening statement.
A few weeks ago, Lerner was brought back, and she again invoked her Fifth Amendment rights. Issa abruptly ended the hearing, cutting off Cummings' mic in the process. The move resulted in Democrats attempting to condemn Issa's action on the House floor with resolutions that were tabled by the Republican majority.
If Republicans on the committee decide to pursue contempt of Congress charges against Lerner, they would have to vote the measure out of the Oversight Committee, after which it would be considered by the entire House.
The House used this tactic in 2012 when it voted to hold Attorney General Eric Holder in contempt of Congress for not complying with a subpoena for documents related to the Fast and Furious gun-running operation. That measure passed from the House 255-67, with a large group of Democrats walking off the floor and refusing to vote in protest.