The latest action of Representative Elijah Cummings (Md.), the ranking Democratic member of the House Oversight and Government Reform Committee, makes one wonder whether he has received a retainer from Lois Lerner. Lerner, of course, is the former IRS official at the heart of the scandal over the targeting of conservative organizations. Cummings appears to be acting as her virtual counsel. He’s been doing everything he can to prevent her from testifying before the committee that is trying to investigate what happened and to protect her from a contempt citation.
There were many media reports about the confrontation that Cummings got into on March 5 with the committee chairman, Darrell Issa (R., Calif.), after Lerner again asserted her Fifth Amendment right against self-incrimination and refused to answer any questions. Cummings followed this up with a letter to Speaker John Boehner (R., Ohio) on March 12 in which he wrongfully claimed that the House of Representatives was barred “from successfully pursuing contempt proceedings” against Lerner.
Cummings relies on a legal opinion that he says he solicited from two lawyers, Morton Rosenberg and Stan Brand, who formerly worked at the Congressional Research Service and the House of Representatives. Cummings claims that Issa supposedly “committed a ‘fatal’ procedural error by failing to meet the prerequisites required by the Supreme Court in order to hold a witness in contempt.” He also claims that, according to his “experts,” even if Issa issues a new subpoena for Lerner, the committee cannot claim that Lerner “waived her Fifth Amendment rights in the previous proceedings.”
The problem with Cummings’s letter and his experts’ legal opinion is that they are wrong. He makes a very basic, “fatal” error on page four of his letter when he claims that — again, according to his experts — “the courts have long recognized that a witness may waive the Fifth Amendment right to self-incrimination at one proceeding, and then invoke it later at a different proceeding on the same subject.”
As I previously pointed out, while that is the rule in most federal courts, it is not the rule in the District of Columbia. In 1969, the Court of Appeals of the District of Columbia specifically ruled in Ellis v. U.S. that “once a witness has voluntarily spoken out,” she cannot assert the Fifth Amendment in a subsequent proceeding with regard to any information she already voluntarily gave to the government.
Cummings fails to mention in his letter that, in a press conference after the March 5 hearing, Lerner’s lawyer admitted that his client had already given a “lengthy interview” to the Justice Department. That means that she was improperly asserting the Fifth Amendment on March 5 to the extent that she was refusing to give the committee the same information she had already given federal prosecutors.
Cummings also argues that Lerner cannot be held in contempt because she did not “receive the requisite clear rejections of her constitutional objections . . . nor was it made unequivocally certain that her failure to respond would result in criminal contempt prosecution.” In plain English, Cummings claims that Issa neither told Lerner that the committee was rejecting her Fifth Amendment claim, nor directed her to answer the questions posed to her, nor warned her that she risked a contempt citation if she refused to do so.