IRS scandal: Will House throw Lois Lerner in slammer?

Lois Lerner declined to testify at a House hearing on the IRS scandal, but not before making an opening statement asserting her innocence. Did that undermine her Fifth Amendment rights?

Is Internal Revenue Service official Lois Lerner going to be locked in jail in the bowels of the US Capitol? That scenario may sound far-fetched, but it is at least theoretically possible. The crucial issue here may be whether Ms. Lerner on Wednesday botched the invocation of her Fifth Amendment rights, or not.

In case you’ve already forgotten or haven’t been following the news, Lerner is the IRS official at the heart of the uproar over the agency’s targeting of conservative groups applying for tax exempt 501(c)(4) status.

Lerner is head of the IRS division on tax exempt organizations. Called to testify on Wednesday before the House Oversight and Government Reform Committee, she said she would not answer questions due to her constitutional right to refrain from incriminating herself.

Before she uttered the magic words “Fifth Amendment," though, she gave an opening statement asserting her innocence.

“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,” Lerner said.

She also authenticated her written answers to an inspector general’s questions on the targeting of conservative groups prior to clamming up.

Committee Chairman Darrell Issa (R) of California excused her after this and warned lawmakers that they should not see Lerner’s refusal to talk as evidence of guilt. But some other panel members said that by asserting her side of the story, she had, in fact, waived her Fifth Amendment rights and so should be forced to talk.

“You don’t get to tell your side of the story and then not be subjected to cross-examination. That’s not the way it works,” said Rep. Trey Gowdy (R) of South Carolina, a former federal prosecutor. “[Lerner] waived her right to Fifth Amendment privilege by issuing an opening statement. She ought to stand here and answer our questions.”

At the end of the session, Chairman Issa said he agreed that Lerner “may have waived” her rights and that he was looking into the possibility of recalling her and trying to make her answer questions.

Legal experts say it’s not clear whether Lerner is now in deep trouble. Some noted that she had been tempting fate by talking, even a little, about her side of the case.

The key question here is whether Lerner was simply asserting her opinion that she is innocent or whether she was testifying about her version of the facts of the case, writes Orin Kerr, a professor at the George Washington University School of Law, on The Volokh Conspiracy legal blog.

Professor Kerr canvassed some criminal procedure law professors for their views on that matter.

“Opinions were somewhat mixed, but I think it’s fair to say that the bulk of responders thought that Lerner had not actually testified because she gave no statements about the facts of what happened,” Kerr writes. “If that view is right, Lerner successfully invoked her Fifth Amendment rights and cannot be called again.”

The view of these experts wasn’t unanimous, so the question remains an open one, Kerr concluded. It’s worth pointing out that Congress is not a federal courtroom. It is often a court of political opinion, and that is the basis by which Lerner ends up being judged.

To compel Lerner to testify, Congress would have to hold her in contempt, and get a judge to rule in favor of it. This could ignite a court battle that could bring lots of attention to the IRS scandal. Lerner might get sympathy as an individual in lawmakers’ cross hairs. Or she might not. Some on the right suggest that’s a gamble worth taking.

“Politically, it might even be worth losing the court battle: Litigation will only call more attention to the fact that Lerner doesn’t want to talk for mysterious reasons, which makes the IRS’s actions look that much shadier,” writes the right-leaning Allahpundit, on Hot Air!.

There’s also the jail possibility. If the House (or Senate) does hold Lerner in contempt, it has the inherent power to send the sergeant-at-arms to arrest and incarcerate her, until she agrees to comply with lawmakers’ demands, notes a 2012 Congressional Research Service report on contempt powers.

That’s largely a theoretical power, though. It hasn’t been used since the Senate jailed a former assistant Commerce secretary in 1934.