Lerner led the IRS division that allegedly singled out tea party groups. | John Shinkle/POLITICO Lois Lerner's plan: fight on

Darrell Issa’s committee says Lois Lerner waived her Fifth Amendment rights — but her attorney says she isn’t going down without a fight.

The House Oversight and Government Reform Committee voted 22-17 on Friday that the embattled IRS official voluntarily waived her rights by reading an opening statement during a hearing last month on the agency’s tea party targeting scandal.


The party-line vote paved the way for the committee to bring Lerner back to Congress and force her to answer questions from lawmakers.

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But in a statement a few hours later, William W. Taylor III, Lerner’s attorney, said she never gave up any rights with her opening statement — and essentially called the vote meaningless.

“A party line vote does not affect anyone’s constitutional rights and this one does not affect Ms. Lerner’s,” Taylor said in the statement.

“Her rights under the constitution are no different now than they were when she asserted them. She did not give up her right to refuse to testify by stating her innocence,” Taylor said. “She had requested that she not be required to appear at all, and was forced against her will to invoke her rights in public. When she was forced to do that, she was entitled to say what she said.”

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The resolution before the committee said that by reading an opening statement proclaiming her innocence at the outset of a May 22 hearing, Lerner — who led the IRS division that allegedly singled out tea party groups applying for a tax exemption — relinquished her constitutional right to avoid self-incrimination.

“I believe Lois Lerner waived her Fifth Amendment protection,” Issa (R-Calif.) said before the committee vote. “She made four specific denials. Those denials are at the core of the committee’s investigation into this matter.”

The committee hasn’t yet scheduled a date to recall Lerner.

Oversight Republican staff told POLITICO they’re open to pitches from Lerner’s lawyer about how she might want to testify, including the idea of granting her partial immunity that would allow her to answer questions without fear that her testimony could be used against her in court.

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But in an interview, Taylor told POLITICO that no decisions have been made about Lerner’s next steps because Issa hasn’t contacted them yet.

“I don’t know that we have to decide anything,” Taylor said. “They’ve made a decision based on an abstract issue. The question is, what are they going to do about it?”

If Lerner refuses to testify, the House could ultimately hold her in contempt. The new IRS leader, Daniel Werfel, asked Lerner to resign after her appearance before Issa’s committee. When she refused, he placed her on administrative leave.

Democrats denied that Lerner waived her rights and criticized Issa for deciding that a congressional committee has authority to strip constitutional privileges from a U.S. citizen.

“I agree that she has information that is relevant to the committee’s investigation,” said Maryland Rep. Elijah Cummings, the panel’s top Democrat. “But we must respect the constitutional rights of every witness who comes before the committee.”

The panel rejected an amendment from Del. Eleanor Homes Norton (D-D.C.) that would have instructed the committee to hold a hearing on the legal matter in question and recall Lerner’s attorney to hear his side of the dispute.

Issa dismissed calls for an additional hearing, repeatedly reminding Democrats that 37 days have lapsed since Lerner first appeared before the panel and that he consulted the House counsel for advice on the matter.

Rep. Gerry Connolly (D-Va.) said the committee was establishing a dangerous precedent.

“If we do this today, every American citizen is at risk who is ever summoned to this committee,” he said. “It could be construed that by insisting that she appear under subpoena, … it constituted entrapment.”

Lerner triggered the legal debate on May 22 when she appeared before the committee under subpoena and boldly declared her innocence before pleading the Fifth.

“I have not done anything wrong,” Lerner said. “I have not broken any laws. I have not violated any IRS rules or regulations and I have not provided false information to this or any other committee.”

Republicans, led by Rep. Trey Gowdy (R-S.C.), immediately argued that they have a right to question her on that statement.

Issa said Friday he held the vote so the committee could weigh in on whether it’s acceptable for witnesses to “come in and give one side of the story and not allow themselves to be cross-examined.”

Rep. John Mica (R-Fla.) put it more bluntly.

“Lois Lerner is in fact a poster child for a federal bureaucrat thumbing her nose at Congress,” he said. “It’s not in the Constitution that there’s a fourth branch that can tell us to go to hell.”

The resolution passed Friday states that Lerner waived her rights on “all questions within the subject matter of the committee hearing that began on May 22, 2013.”

That means she could be forced to answer questions on virtually anything related to the IRS scandal, but especially questions “relating to any facts or information that would support or refute her assertions” that she broke no laws nor lied to the panel.

Some Democrats are calling the focus on Lerner a “distraction” from recent news that the IRS also maintained a “be-on-the-lookout” alert for “progressive” groups.

“I think this has been a bad week for Darrell and the witch-hunting crew,” Connolly told POLITICO the evening before the vote. “It’s a deliberate distraction, and what’s so disturbing about it is the majority is … about to destroy a woman’s career and probably cost her a lot of money in legal fees … all in the name of a partisan agenda.”