Two legal experts say Issa's procedural hiccup is 'fatal' to the contempt vote. Dems: Issa botched procedural rules

Two veteran House legal experts say Republican House Oversight Chairman Darrell Issa botched his shot at holding former IRS official Lois Lerner in contempt of Congress by ignoring legal rules, according to Democrats, though not all experts agree.

Oversight Democratic staff Wednesday night sent Speaker John Boehner (R-Ohio) and the California Republican’s staff a legal brief of sorts, authored by Morton Rosenberg, a 35-year veteran of the Congressional Research Service, and signed by Stan Brand, House Counsel from 1976-83.


Brand has made contributions to Democrats, according to federal election filings.

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The two said Issa was legally required but failed to present Lerner, who asserted her Fifth Amendment right at a high-profile hearing last week, with a “clear-cut choice” between answering the committee’s questions and risking contempt.

Rather, Issa said Lerner “may” be held in contempt if she didn’t answer questions.

Boehner and some other legal experts on Thursday rejected that argument.

“I do not agree with that analysis in any way shape or form,” Boehner said. “We’ve made clear on more than one occasion that Ms. Lerner should either testify or be held in contempt.”

Lerner headed the IRS tax-exempt division that singled out conservative groups for extra scrutiny and has become the primary focus of Republicans probing the matter, which exploded last May after a critical inspector general report of the practice.

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Pointing to several 1950s Supreme Court cases that threw out similar congressional contempt votes, Rosenberg and Brand said Issa was required to overrule Lerner’s Fifth Amendment claim, and specifically order her to speak.

This procedural hiccup, thetwo said, is “fatal” for the House’s looming contempt vote.

“Making it clear to the witness that she has a clear-cut choice between compliance and assertion of the privilege is an essential element of the offense and the absence of such a demand is fatal to any subsequent prosecution,” Rosenberg and Brand wrote to Oversight Democrats, which was forwarded to GOP leadership.

Republicans on the panel all but rolled their eyes at the brief.

“I am not persuaded by the legal musings of two attorneys,” said Oversight member Trey Gowdy (R-S.C.), a lawyer himself. “Uttering certain talismanic words is not required before finding someone in contempt for the failure to answer questions. … Ms. Lerner was not going to answer any questions — regardless of whether she was directed to or not.”

Republican Oversight spokesman Frederick Hill called it partisan and “deeply flawed and at odds with the House’s own expert legal counsel to the committee.”

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Hill pointed out that Issa “specifically informed Ms. Lerner of the committee’s formal determination that she had waived her Fifth Amendment right not to answer questions” and “offered her fair warning that a refusal to answer could lead to a contempt finding.”

Regardless, the objection is more of a legal question than a House procedural question so would not, therefore, officially bar Republicans from trying to hold Lerner in contempt, a House rules expert who did not wish to be named told POLITICO.

Donald Wolfensberger, head of the Woodrow Wilson International Center for Scholars’ Project, agreed.

“Just as a good prosecutor can indict a ham sandwich, a House majority can find any witness in contempt,” he said. “The legal questions don’t kick in unless and until the Justice Department prosecutes the contempt case.”

The House’s Office of General Counsel could not be reached for comment Wednesday night.

Joe DiGenova, a GOP lawyer and former independent counsel, said that given the lengthy negotiations between Lerner’s lawyer and the committee, she was likely told she would be asked to testify or held in contempt.

“I do not believe it is fatal,” DiGenova said. But he said: “it is not going to make a difference; they will just subpoena her again.”

The Democrats’ two legal experts said that Issa can’t simply recall Lerner back to the hearing to fix the snag because he adjourned the hearing, which they say means Lerner is free of her subpoena.

And if Issa were to issue a new subpoena to bring her back , the two conclude that any claim on the part of Republicans that she waived her rights in the previous hearing when she gave an opening statement would be lost.

GOP leadership recently postponed the Oversight contempt vote after a heated exchange between Issa and Elijah Cummings (D-Md.) made waves.

Issa had to apologize after he abruptly ended the hearing, while turning off Cummings’s microphone.

“It no longer may be possible to pursue these avenues at this point because Ms. Lerner’s attorney has lost faith in the committee’s credibility,” Cummings said in a letter to Boehner.

Lerner originally found herself in limbo under an Oversight committee subpoena when she appeared at a May 2013 hearing, asserted her innocence in an opening statement, then tried to invoke the Fifth to not answer self-incriminating questions.

In a party-line vote, the committee in June agreed she’d waived her right with the opening statement.

The panel brought her back last week.

Rosenberg, who wrote the letter joined by Brand, points to a series of 1955 cases where people were summoned to testify before the now-dissolved committee on Un-American Activities but refused questioning. After being held in contempt, the court dismissed the contempt charge because the panel hasn’t laid the foundation for prosecution.

“A jurisdictional committee must disallow the constitutional privilege objection and clearly apprise the witness that an answer is in demand,” Rosenberg wrote. “A witness will not be forced to guess whether or not a committee has accepted his or her objection.”

Rosenberg continued: “At no time did the chair expressly overrule the objection and order Ms. Lerner to answer on pain of contempt.”

—Jake Sherman contributed