Lawyer for ex-IRS official Lerner seeks to address House ahead of contempt vote

Mike Emanuel reports from Capitol Hill


The lawyer for former Internal Revenue Service official Lois Lerner sent a letter to House Republican leaders on Monday, asking for an opportunity to address the House ahead of a vote to hold his client in contempt of Congress.

Last May, Lerner refused to answer questions at a hearing about IRS agents singling out tea party applications for extra scrutiny. She again refused to answer questions in March, citing her Fifth Amendment right against self-incrimination.

The Oversight Committee voted earlier this month to hold her in contempt. All Republicans voted in favor and all Democrats voted against.

Lerner directed the IRS division that processes applications for tax-exempt status. She retired from the IRS last fall, ending a 34-year career in the federal government, including work at the Justice Department and Federal Election Commission. 

"Holding Ms. Lerner in contempt would not only be unfair and, indeed, un-American, it would be flatly inconsistent with the Fifth Amendment as interpreted by the Supreme Court," Lerner's lawyer, William W. Taylor III, wrote in a letter to House Speaker John Boehner, R-Ohio. 

Taylor requested "an opportunity to present to the House the reasons why it should not hold Ms. Lerner in contempt."

In an email, Taylor told The Associated Press that Lerner's lawyers would address the House, if given the chance -- not Lerner herself.  

Taylor, citing Supreme Court precedent, argues in the letter that Lerner cannot be prosecuted for asserting her Fifth Amendment privilege.

"No court will hold that she waived her privilege," Taylor said. "Supreme Court precedent is clear that a witness compelled to appear before a congressional committee does not waive her Fifth Amendment privilege by asserting her innocence."

Boehner spokesman Michael Steel said, "Ms. Lerner can avoid being held in contempt at any time by testifying fully and honestly, but she has chosen not to." 

House Majority Leader Eric Cantor, R-Va., responded on Twitter: "The House welcomes the opportunity for Lois Lerner to address our members. She can do so at any time before the House Oversight Committee." 

The House is expected to vote on the contempt measure in May, according to a memo from Cantor to House Republicans. 

Taylor's appearance before the House would be extraordinary. Other than House members, the privilege of addressing the full House is generally reserved for foreign leaders, dignitaries and, of course, the president. 

Lerner was subpoenaed by the Oversight Committee last year after publicly acknowledging that the IRS had improperly singled out tea party and other conservative groups for extra scrutiny when they applied for tax-exempt status from 2010 to 2012.  

Oversight Committee Democrats have compiled a list of constitutional experts who say the contempt case is weak.  Committee Chairman Darrell Issa, R-Calif., countered with a memo from the House general counsel's office saying there is a legal foundation for holding Lerner in contempt.  

Rep. Elijah Cummings of Maryland, the top Democrat on the committee, complained that the House is poised to act without hearing from any experts. 

"Before members of Congress are asked to take the grave step of stripping an American citizen of her Fifth Amendment rights -- something Congress has not attempted to do since the McCarthy era -- I believe the Republican leadership should do what Chairman Issa has refused to do for the last nine months: allow members to hear directly from Ms. Lerner's attorney and from some of the more than 30 independent legal experts who have concluded that his contempt proceeding will be thrown out of court," Cummings said.

Last week, House Republicans stepped up their investigation into the Justice Department's possible role in the targeting scandal, citing emails that purportedly suggest high-level DOJ officials may have been involved.

Emails published April 16 showed correspondence between Lerner and others at the IRS regarding the DOJ's interest in investigating "political" groups.

Senior Justice Department have denied the agency's involvement, saying that the accusations surrounding the emails are "conflating two separate issues." 

The Obama administration at the highest level denied the targeting, from 2010 through the 2012 presidential election cycle, was illegal or politically motivated.

The Associated Press contributed to this report.