House holds Lois Lerner in contempt in IRS scandal: What does that mean?

The House has held former IRS official Lois Lerner in contempt for her refusal to testify. But possibly nothing at all could happen to Ms. Lerner if the move is seen as partisan politics.

The US House of Representatives voted on Wednesday to find former Internal Revenue Service official Lois Lerner in contempt of Congress for refusing to testify about alleged IRS targeting of tea party organizations seeking tax exempt status. The House also approved a measure asking Attorney General Eric Holder to appoint a special prosecutor to investigate the IRS case.

Republicans, who control the House, unanimously supported the measures; six Democrats voted to hold Ms. Lerner in contempt and 26 voted to petition Mr. Holder for a special counsel. According to congressional rules, the contempt resolution does not need to go through the Senate.

What does all this mean for Lerner, legally and politically?

1. Legally, the point of filing a contempt charge is to compel someone to testify.

“We want her simply, simply to answer the questions,” said Rep. Jim Jordan (R) of Ohio from the House floor on Wednesday. Representative Jordan is a member of the House Committee on Oversight and Reform that has been investigating the IRS matter.

A year ago, Lerner said at a gathering of the American Bar Association that agents had improperly singled out tea party for extra scrutiny. The oversight committee then began investigating, calling Lerner to testify. But she asserted her constitutional right to remain silent by pleading the Fifth Amendment that protects from self-incrimination.

A legal argument has ensued about that plea. Republicans say that Lerner forfeited her right to remain silent because she first, in a brief statement, asserted her innocence. That amounts to testimony, they say: It’s then too late to plead the Fifth. Democrats argue that oversight chairman Darrell Issa (R) of California forfeited his right to charge contempt by closing down the hearing without ever challenging Lerner’s pleading of the Fifth.

As a result of the contempt charge Wednesday, it will be up to a judge to decide who is right.

2. If a judge finds Lerner in contempt, she could face a fine of up to $100,000 and jail time of up to 12 months.

That is, if it gets that far. First, the case has to be referred to a US attorney. But the Justice Department could decide the charge is frivolous and refuse to prosecute, says Craig Holman, a government affairs lobbyist for Public Citizen, which advocates for consumers. The House could also go to court to attempt to compel Lerner to testify. If the contempt charge does get to a courtroom, Mr. Holman says, it’s likely to be thrown out because a judge will view it “more as partisan politics.”

Republicans suspect the IRS targeting was politically motivated and that the White House may have been involved, but an inspector general’s report found no evidence of either, nor have congressional probes. The fact that the contempt charge is criminal is another clue that the case is political, Holman explains. The House did not need to go that far, he says. It could just as easily have brought a civil charge of contempt.

3. Expect the issue to linger through the election season

“This entire resolution really is partisan in nature,” Holman asserts, and Democrats agree.

"Instead of passing bipartisan legislation to create more jobs, reform immigration, raise the minimum wage, or address any number of issues that affect our constituents every single day, House Republicans are spending this entire week trying to manufacture scandals for political purposes," said Rep. Elijah Cummings of Maryland, the top Democrat on the House Oversight Committee.

Republicans defend their concerns as legitimate. “No one should have to worry, no one – Republican, Democrat, libertarian or otherwise – should ever have to worry about their political speech having them singled out by the IRS," said Rep. Rich Nugent (R) of Florida. "We should be alarmed about the conduct of the IRS, under the direction of Lois Lerner. We should be worried about that in the future because that is the biggest single threat to America today."

Witch hunt or not, no federal agency intersects more directly with the American public than the IRS, and the issue, if kept alive, would serve as another Obama-punching bag for the midterm elections.

4. You can meanwhile count on the special counsel request going nowhere.

Special prosecutors cost time and money – think special counsel Kenneth Starr and the Monica Lewinsky scandal. At the same time, the Justice Department is not yet finished investigating the IRS case.

But much more than that, it’s hard to imagine Holder following up on this request. In 2012, Congress voted to hold the attorney general in contempt for withholding documents related to the botched gun-running operation known as “Fast and Furious.” There’s no love lost between Holder and Republicans in Congress.