The House of Representatives has voted to hold Lois Lerner, the former Director of the Internal Revenue Service (IRS) Exempt Organizations Division, in contempt. Ms. Lerner was implicated in allegations that the IRS targeted tax-exempt organizations for heightened scrutiny based on the nonprofits’ political affiliations. Indeed, the Treasury Inspector General for Tax Administration eventually found that the IRS used “inappropriate criteria” in reviewing applications for tax-exempt status. The 231-187 vote for contempt largely tracked political party lines, as did the 250-168 vote approving a separate nonbinding resolution calling upon the Attorney General to appoint special counsel to investigate the IRS targeting.
Lerner has refused to testify before three House committees by asserting her right against self-incrimination under the Fifth Amendment to the U.S. Constitution. Some House members contend that Lerner waived her Fifth Amendment rights when she initially denied wrongdoing in an opening statement she made in testimony to the House Committee on Oversight and Government Reform. Lerner reportedly provided a lengthy interview to investigators from the Justice Department and has not been charged with a crime.
Congress has enforcement mechanisms available for contempt, including referring the matter for federal criminal prosecution. Congress has an inherent power to enforce its contempt process but has not invoked that authority in decades. Statutory contempt is a much more practical enforcement avenue. Under 2 U.S.C. §§ 192 and 194, refusing to answer pertinent questions can result in a misdemeanor prosecution. Statutory contempt requires (1) approval of a contempt report by a committee; (2) public reading of the report on the floor of the House of Representatives; and (3) a resolution, supported by a majority of the members of the House, to refer the report to the appropriate United States Attorney to consider criminal prosecution; and (4) certification of the report to the U.S. Attorney by the Speaker of the House.
Generally, Congress must respect Constitutional limitations on its inherent power to hold hearings and investigate matters within a Committee or Sub-Committee’s purpose. The Fifth Amendment right against self-incrimination is one such limitation. Witnesses called to testify in the past have also objected under Fifth Amendment Due Process principles to inquiries that are allegedly beyond a Committee’s mandate and under the freedom of speech and association protections of the First Amendment, among other grounds.
Few contempt of Congress matters result in criminal prosecution due to the inherently political nature of these kinds of disputes and because most disputes about providing information to or testifying before Congress result in some kind of compromise.