The Department of Justice announced Wednesday that it will not charge former IRS chief Lois Lerner on criminal contempt charges after she refused to testify before the House Oversight and Government Reform Committee in March of last year.
Lerner refused to testify on questions about the IRS targeting conservative groups which came to light in 2013.
The chairman of the panel Rep. Darrell Issa (R-CA) insisted that Lerner waived her 5th Amendment right to refuse to testify by making an opening statement to the committee before she claimed her right to remain silent.
But this week, outgoing U.S. attorney for the District of Columbia Ronald Machen disagreed with Issa’s assertion. In a statement, Machen said, “Ms. Lerner did not waive her Fifth Amendment privilege by making general claims of innocence. The Constitution would provide Ms. Lerner with an absolute defense if she were prosecuted for contempt.”
While this closes the door on action by the Department of Justice, this does not necessarily leave Lerner off the hook. If he has a mind to pursue Lerner, Republican Speaker of the House John Boehner still has options.
If Boehner has the political will, he can still press contempt proceedings against Lerner through a case in a federal court. Congress can pass a majority resolution authorizing a single member, perhaps someone such as Jason Chaffetz (R-UT), to file a civil suit in federal court on behalf of the full house.
This would force Lerner to once again make a choice on how to respond to being summoned to give testimony. Regardless of what Lerner says in such a case, though, House lawyers could point to Lerner’s 2014 statement as a waiver of her Fifth Amendment rights—just as Issa contended last year. A federal judge would then be charged with deciding whether Lerner waived her rights not to testify or maintains her right to stay silent.
If it is decided that Lerner did waive her rights and if she still refuses to talk, a federal judge could hold her in criminal contempt of court and possibly jail her until she gives her testimony.
The power for this action the House can take stems from Congress’s inherent authority under the Constitution to be able to obtain, on an ongoing basis, all information pertaining to the operations of the Executive Branch. It is the same authority that gives Congress the power to subpoena members of the administration to compel them to testify before congressional committees.
At this point, it seems that the ball is in John Boehner’s court.
Follow Warner Todd Huston on Twitter @warnerthuston or email the author at firstname.lastname@example.org.