Some people can’t take “no” for an answer. Often that’s an admirable quality. But when you are a witness at the center of a congressional investigation, and the “no” reflects the House Oversight Committee’s decision not to accept your refusal to testify, then it’s not quite so simple. And that is where Lois Lerner, the former Internal Revenue Service official at the center of the IRS scandal, now finds herself.
Lerner’s case is by now well known. From 2006 to 2013, she was the IRS’s Director of Exempt Organizations, vested with power to decide which nonprofit organizations receive tax-exempt status, which ones do not, and which ones find themselves subjected to painful trials in the process.
That is no small matter. As Chief Justice John Marshall warned, “the power to tax” is “the power to destroy.” All the more so for nonprofit organizations, for which tax-exempt status truly is the difference between life and death.
And tax-exempt status benefits more than just a particular organization, its donors, and its direct beneficiaries. The federal government exempts these organizations from taxes precisely because of the benefits that accrue to society at large. As Justice Brennan once wrote, each of these groups “contributes to the diversity of association, viewpoint, and enterprise essential to a vigorous, pluralistic society.” And thus, as Justice Powell wrote, “the provision of tax exemptions to nonprofit groups is one indispensable means of limiting the influence of governmental orthodoxy on important areas of community life.” (I might add that this is what President George H. W. Bush alluded to when he praised America’s “thousands and tens of thousands of ethnic, religious, social, business, labor-union, neighborhood, regional, and other organizations, all of them varied, voluntary, and unique,” which “spread like stars, like a thousand points of light in a broad and peaceful sky.”)
Precisely because of the crucial role that nonprofit organizations play in American society, the IRS’s partisan abuse of power, singling out conservative tea-party organizations for particularly negative treatment, is a public scandal.
According to the public record, Ms. Lerner played a central role in perpetrating that scandal. From her IRS perch, she instructed colleagues that tea-party groups’ nonprofit applications were “a very dangerous matter,” and directed that such groups receive serious scrutiny. And she took the “tea party” label to be a “pejorative” — Samuel Adams and the other original Sons of Liberty notwithstanding.
The House Oversight Committee originally invited Ms. Lerner to testify in May 2013. She agreed to appear before the committee, but she also stated through counsel that she would invoke her Fifth Amendment privilege against self-incrimination. The committee then subpoenaed her, to force her to testify as to what she knew and did in the IRS scandal. But again she refused to testify.
When Ms. Lerner appeared before the committee on May 22, 2013, she swore to tell “the truth, the whole truth, and nothing but the truth,” and she voluntarily made an opening statement, but then she refused to answer the committee’s questions. The committee’s chairman, Representative Darrell Issa, put the hearing into recess and excused Ms. Lerner, subject to being recalled before the committee. The next month, the committee discussed Ms. Lerner’s refusal to testify, and then approved a resolution finding that Ms. Lerner’s voluntary opening statement constituted a waiver of her Fifth Amendment privilege against the committee’s questions.
In February 2014, the committee called for her to return for the reconvened proceedings. Chairman Issa reminded her that if she refused yet again to testify, after the committee already had found her to have waived her Fifth Amendment privilege, then the committee could recommend that she be held in contempt.
That hearing ultimately was held on March 5. Chairman Issa began by reiterating that if she refused once again to testify despite the subpoena, then the committee “may proceed to consider whether she should be held in contempt.” Despite these plain warnings, Ms. Lerner once again knowingly refused to testify. At that point, there was no dispute that the committee already had rejected her invocation of the Fifth Amendment, and that she therefore could be held in contempt of the hearing.
Nevertheless, Democrats supporting Ms. Lerner now assert that she cannot be held in contempt. According to Representative Elijah Cummings (the committee’s ranking Democrat), in a letter to House speaker John Boehner, the committee failed to provide “clear rejections of her constitutional objections and direct demands for answers” and failed to make “unequivocally certain that her failure to respond would result in criminal contempt prosecution.”
But as Chairman Issa noted in a letter of his own, that defense of Lerner is wrong both on the facts and on the law.