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Can Lois Lerner Skate on a Technicality?

Updated: Mort Rosenberg’s response follows

On a snowy day, what could be better than snuggling up with some 1950s Supreme Court cases and getting deep into the technicalities of congressional contempt procedure? If your answer is “just about anything,” you would not have enjoyed John Filamor’s going-away party.

As it happens, I had a reason for doing this. My friend and congressional legal expert extraordinaire Mort Rosenberg, with some assistance from former House Counsel Stan Brand, wrote this memo last week to Elijah Cummings, ranking member of the House Committee on Oversight and Government Reform (COGR). The memo concludes, based on Supreme Court precedent, that Lois Lerner cannot be held in contempt for her refusal to answer questions at a recent COGR hearing, explaining that “at no stage in this proceeding did the witness receive the clear rejections of her constitutional objections and direct demand for answers nor was it made unequivocally certain that her failure to respond would result in a criminal contempt prosecution.”

For the reasons set forth below, I don’t think the Supreme Court cases relied on by Rosenberg and Brand support their conclusion. It is unlikely, in my opinion, that Lerner could escape criminal conviction on the grounds set forth in their memo. Moreover, as far as I can tell there is no basis for the suggestion that Lerner would be able to successfully defend a civil suit on this basis.

Perhaps more importantly, I do not think it appropriate for Representative Cummings to endorse this position. Lerner has skilled defense counsel who is more than capable of deciding whether it is in her interest to raise this hyper-technical defense should she be charged with criminal contempt. There are legitimate institutional reasons why Cummings might object to holding Lerner in contempt, but this is not one of them.

Background

Lerner, a high-ranking IRS official who allegedly participated in targeting conservative organizations for special scrutiny when they applied for tax exempt status, was originally subpoenaed to testify before COGR on May 22, 2013. She appeared, made an exculpatory opening statement, and then mostly refused to answer the committee’s questions based on her Fifth Amendment privilege against self-incrimination. A member of the committee raised the issue of whether Lerner had waived her Fifth Amendment privilege by making a voluntary statement professing her innocence, and Chairman Issa temporarily excused Lerner without releasing her from the obligation of the subpoena so that the committee could “seek specific counsel” on the question whether or not there had been a waiver. Issa also alluded to the possibility that Lerner could be given use immunity to testify without the possibility of self-incrimination.

COGR subsequently solicited and obtained an opinion from the House Counsel on the waiver question. At a meeting on June 28, 2013, COGR debated and approved a resolution rejecting Lerner’s invocation of the Fifth Amendment on the grounds that she had waived the privilege.

The committee recalled Lerner to a hearing on March 5, 2014. There were apparently negotiations between the committee and Lerner’s counsel about the possibility of Lerner providing substantive testimony at this hearing, but these negotiations collapsed prior to the hearing date.

In his March 5 opening statement, Chairman Issa stated: “At a business meeting on June 28, 2013, the committee approved a resolution rejecting Ms. Lerner’s claim of Fifth Amendment privilege based on her waiver at the May 22nd, 2013 [hearing].” He then warned: “If Ms. Lerner continues to refuse to answer questions from our members while she is under a subpoena, the committee may proceed to consider whether she should be held in contempt.”

After Lerner was sworn, Issa began the questioning by asking her about a public statement she had made in 2010 regarding someone wanting the IRS to “fix the problem” caused by the Supreme Court’s Citizens United decision. Lerner responded as follows: “My counsel has advised me that I have not waived my constitutional rights under the Fifth Amendment and on his advice I will decline to answer any question on the subject matter of this hearing.”

Issa then asked her: “So you are not going to tell us who wanted to ‘fix the problem’ caused by Citizens United?” Lerner again invoked her Fifth Amendment privilege and, true to her word, continued to do so as Issa proceeded to ask her further questions. The hearing ended with an ugly, though I think legally irrelevant, scene in which Cummings attempted to make a statement, and Issa directed that his microphone be cut off.

 

Legal Analysis 

Rosenberg and Brand contend that Issa’s handling of the March 5 hearing ran afoul of a trilogy of 1955 Supreme Court cases in which the Court considered the criminal contempt convictions of witnesses who had refused to answer questions before a subcommittee of the House Un-American Activities Committee (HUAC). In each case the witness invoked a privilege or other legal objection to the subcommittee’s questions, and the questioning proceeded without any formal ruling or decision with respect to those objections.

The Court held that these facts were inadequate to sustain a criminal conviction for contempt under 2 U.S.C. § 192 because that section, “like the ordinary Federal criminal statute, requires a criminal intent—in this instance, a deliberate, intentional refusal to answer.” Quinn v. United States, 349 U.S. 155, 165 (1955). If a witness “raises an objection to a certain question—for example, lack of pertinency or the privilege against self-incrimination—the committee may sustain the objection and abandon the question, even though the objection might actually be without merit.” Id. The witness is therefore entitled to know whether the committee has accepted or rejected the objection before being required, on pain of contempt, to answer.

In Bart v. United States, 349 U.S. 219 (1955), for example, “[a]t no time did the committee directly overrule petitioner’s claims of self-incrimination or lack of pertinency.” Thus, petitioner “was left to speculate about the risk of possible prosecution for contempt” and “was not given a clear choice between standing on his objection and compliance with a committee ruling.” Id. at 223.

Similarly, in Quinn the Court stated:

At no time did the committee specifically overrule [the witness’s] objection based on the Fifth Amendment; nor did the committee indicate its overruling of the objection by specifically directing petitioner to answer. In the absence of such committee action, petitioner was never confronted with a clear-cut choice between compliance and non-compliance, between answering the question and risking prosecution for contempt. At best, he was left to guess whether or not the committee had accepted his objection.

349 U.S at 166; accord Emspak v. United States, 349 U.S. 190, 202 (1955) (“At no time did the committee specifically overrule petitioner’s objection based on the Fifth Amendment, nor did the committee indicate its overruling of the objection by specifically directing petitioner to answer.”).

Rosenberg and Brand argue that these cases prohibit criminal contempt for Lerner because during the March 5 questioning Issa “never expressly rejected Ms. Lerner’s objections nor demanded that she respond.” But they inexplicably minimize the fact that COGR had already rejected Lerner’s assertion of the Fifth Amendment privilege in a formal vote on June 28, 2013, something that was clearly known to Lerner long before the March 5 hearing and was in any event explained to her at the outset of the hearing.

Unlike the witnesses in the HUAC cases, Lerner was undeniably aware that the committee had rejected her objections and that she had a “clear-cut choice” between standing on her objection or complying with the committee’s ruling. Indeed, her response to Issa’s first question shows her understanding that she had a choice between accepting the committee’s determination that she had waived her privilege and standing on her objection based on the advice of her attorney that no waiver had occurred. There was no ambiguity in COGR’s ruling on the waiver question and no way that Lerner could have been confused as to whether or not COGR had accepted her privilege assertion.

Rosenberg and Brand highlight the fact that Issa did not direct Lerner to answer questions at the March 5 hearing. But while it is true the Quinn Court noted that in traditional congressional practice “a specific direction to answer was the means then used to apprise a witness of the overruling of his objection,” 349 U.S. at 168, this means was merely an indirect way of communicating to the witness that his or her objections had been rejected by the committee. In the Lerner case, COGR went beyond what the Supreme Court requires by holding a separate session to debate and rule upon her objections. Since Lerner was informed of the fact the committee formally rejected her position, there was no need for a specific direction to answer.

In each of the three Supreme Court cases, the Court pointed to the absence of a specific ruling by the committee on the witness’s objection. The Court also noted that the chairman or presiding officer had not specifically directed the witness to answer. But the latter is a substitute for the former, i.e., by directing the witness to answer the chairman “indirectly inform[s]” the witness of the committee’s position on the objection. See Bart, 349 U.S. at 222. Nothing in the language or reasoning of the Supreme Court opinions suggests that the committee need both formally rule on the witness’s objection and, after communicating this ruling to the witness, specifically order her to answer. To the contrary, the Court stated that “the committee is not required to resort to any fixed verbal formula to indicate its disposition of the objection.” Quinn, 359 U.S. at 170.

One might argue that it was also evident in the HUAC cases, as the dissenting justices contended, that the committee did not accept the witnesses’ legal objections. Justice Harlan, for example, noted that “the record shows that Emspak was clearly apprised that, despite his objections, the committee wanted answers to [its] questions.” 349 U.S. at 215 (Harlan, J., dissenting). But the transcript cited by Justice Harlan only indicated that the committee was unhappy with the witness’s decision to assert objections rather than answering its questions; this is not the same thing as determining that the witness had no legal right to make those objections. Certainly there was nothing in the HUAC cases remotely comparable to COGR’s formal vote to reject Lerner’s assertion of privilege.

So why do Rosenberg and Brand believe that the Lerner contempt is invalid under Quinn/Bart/Emspak? Their memo says “Chairman Issa’s opening statement at the March 5, 2014 hearing, while referencing the waiver decision did not make it a substantive element of the Committee’s current concern and was never mentioned again during his interrogation of the witness.” As best I can figure out, this sentence suggests that Issa’s admonition to Lerner at the outset of the March 5 hearing (“If Ms. Lerner continues to refuse to answer questions from our members while she is under subpoena, the committee may proceed to consider whether she should be held in contempt”) may have referred only to future hearings in which Lerner might be asked to testify, but not to the very hearing at which Issa was speaking, the hearing to which Lerner had been summoned to give her an opportunity to answer questions following the committee’s decision to reject her assertion of privilege. Neither Lerner nor anyone else could have reasonably interpreted Issa’s statement in this way.

Rosenberg and Brand also contend “the Chairman’s opening remarks were equivocal about the consequences of a failure by Ms. Lerner to respond to the questions.” But there was no equivocation with respect to the issue considered in the Supreme Court trilogy, namely whether the committee had accepted or rejected the witness’s objection. It is true that Chairman Issa did not claim that it was “unequivocally certain” that Lerner’s failure to answer would result in a contempt prosecution. But this is not the standard established by the Supreme Court. The Court merely requires that the witness be clearly advised that her objection had been overruled so as to give her “a clear-cut choice between compliance and non-compliance, between answering the question and risking prosecution for contempt.” Quinn, 349 U.S at 166 (emphasis added). Lerner was in fact given such a clear-cut choice and there can be no plausible suggestion that she was unaware she was “risking prosecution” by asserting a privilege that the committee had found to have been waived.

A committee chair can never be “unequivocally certain” that a congressional witness will face prosecution for contempt. The decision to report the witness for contempt is made by the committee as a whole, not by the chair alone. Furthermore, the committee’s contempt report does not end the matter; the full House must still vote to refer the contempt for prosecution. Even then, either the U.S. attorney or the grand jury can prevent a prosecution from taking place.

Rosenberg and Brand also focus on the fact the Issa may have considered, and may still be considering, the possibility of granting Lerner use immunity instead of holding her in contempt. (Technically, the committee could do both, but this is unlikely as a practical matter.) But this fact is in no way relevant to whether Lerner is guilty of criminal contempt. What the Supreme Court trilogy entitle her to is a ruling by the committee on her legal objections; they do not entitle her to a determination of all of the prudential and tactical questions that may inform the committee’s decision on whether to move forward with contempt.

These considerations make it highly unlikely that a court would read Supreme Court precedent in the manner suggested by the Rosenberg/Brand memo. But even if one believes that they have put forth a plausible legal defense for Lerner, I am mystified as to why Ranking Member Cummings feels the need to embrace that defense. The memo does not identify any fundamental unfairness, or any unfairness at all, in the process followed by COGR. It simply argues that Supreme Court precedent could be read broadly to allow Lerner to escape conviction on a technicality. That is a proper matter for Lerner’s counsel to pursue, but it is not in the interest of the committee to encourage witnesses to look for hyper-technical deficiencies in the committee’s procedures.

As already noted, a literal reading of the Rosenberg/Brand memo would suggest that no congressional witness could ever be held in contempt because it is never “unequivocally certain” that a contempt prosecution will result from a refusal to answer. Even if the memo is read less literally, it would seem to provide ample fodder for defense counsel intent on legalistic gamesmanship, rather than good faith cooperation with congressional inquiries. Cummings may regret his embrace of this reasoning in the future.

 

Conclusion

As explained above, I do not think Lerner has a valid defense to a criminal contempt prosecution based on the theory advanced in the Rosenberg/Brand memo. Moreover, I see no basis for the memo’s off-hand assertion that dismissal would be “likely” if the House instead proceeded with a civil enforcement suit. The rationale of the Supreme Court trilogy is entirely rooted in the intent requirement of a criminal prosecution. No explanation has been offered as to why these cases would have any application to a civil suit. Indeed, even one of the supporting experts cited by Representative Cummings, Professor Lance Cole, endorses civil enforcement as the proper means for resolving the legal dispute between COGR and Lerner.

I have previously expressed my reservations about holding Lerner in contempt based on the determination that she waived her Fifth Amendment rights. In my view, the committee would be wiser to announce its position on waiver prospectively, but not apply that ruling to Lerner (unless she refuses to withdraw the exculpatory statement made at the May 22, 2013 hearing).

If, however, the committee decides to proceed with contempt, it certainly would make more sense to proceed civilly rather than criminally. Not only does civil enforcement obviate the legal argument made by Rosenberg and Brand, but it mitigates the unfairness (or arguable unfairness) of treating Lerner differently than past witnesses who have made exculpatory statements before invoking the Fifth.

 

Mort Rosenberg responds:

Mike, I am not persuaded. There was no rejection of Lerner’s 5th Amendment claims during the May 22, 2013 hearing. The subsequent committee vote determining that her opening statement and later authentication of a document was a waiver of the privilege was not a rejection and notice of impending contempt prosecution required by the Supreme Court’s trilogy. As  I have argued, mention of that determination in his March 5 opening statement, along with his ambiguous reference to an immunity grant and the possibility of a criminal contempt citation doesn’t cut it. Issa then commenced his questioning and in her initial answer she denied, on advice of counsel, that she had waived her privilege, and then invoked the privilege as to that query and every one thereafter, without rejection and statement of consequence. Lerner’s rejection of the waiver claim, as I pointed out in my memo, is plausible and supported by case law. If there is a contempt prosecution, the first issue before the court will be the waiver claim.

I believe that Issa’s last question to Lerner further reflects the uncertainty of what the committee intended. He asked her whether she still wanted to “testify” with a weeks delay, referencing communications between the committee and her attorney. She took the 5th. The indication was that there were still negotiations going. One source has led me to believe that Taylor’s offer was for her to be deposed in a closed session, which of course means that public disclosure could only come by a majority vote of the committee. That might, for a variety of reasons, have been unacceptable to the Chairman. In any  event, the Chairman abruptly closed the hearing at that point with the comment that Lerner continued to be uncooperative but without the required rejection and notice.

I think you unfairly diminish the historical and legal significance of the trilogy. The Court in those three cases (and others subsequent to them) was attempting to send a strong message to Congress generally, and to HUAC and its chairman in particular, that it would not countenance McCarthyistic tactics evidenced in those cases. The Court in Quinn wrote a paean in support of the continued vitality of the privilege that demands a liberal application: “Such liberal construction is particularly warranted in a prosecution of a witness for refusal to answer, since the respect normally accorded  the privilege  is then buttressed  by the presumption of innocence accorded a defendant  in a criminal trial. To apply the privilege narrowly or begrudgingly to treat it as an historical relic, at most merely to be tolerated– is to ignore its development and purpose. The Quinn  Court did observe that a committee did say that no specific word formula was required to protect its investigative prerogatives, but the firm rules, iterated and reiterated in all three cases–clear rejections of a witness’s constitutional objections, demands for answers, and notice refusal would result in criminal prosecution–belie any intent to allow palpable ambiguity. Together with later Court rulings condemning the absence or public unavailability of committee procedural rules, or the failure abide by standing rules, and uncertain committee subject jurisdiction, we today have a legislative investigatory process that is broad and powerful but restrained by  clear due process requirements. My own experience that with contempt proceedings is that committees have faithfully adhered to the script propounded by the trilogy and that in some instances useful in achieving information disclosures. In the Haney proceeding attorneys for Haney who had received  subpoenas for documents claimed attorney client privilege. Their claims were rejected, they were warned, and then voted in contempt. They then offered to turn over the documents if the contempt vote was reversed. It was. A D.C. Bar Ethics ruling upheld the propriety of their actions. A similar result occurred after a House floor vote of contempt of the Bernstein brothers who were covering their actions of the Marcoses.  

I think a contempt proceeding under the present circumstances would be faulty.                      

 

 

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