When ‘No’ Means ‘No’

by C. Boyden Gray
Lois Lerner willfully and knowingly exposed herself to a contempt vote.

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.

First, about the facts: There can be no serious dispute that Ms. Lerner knew that the committee had rejected her refusal to testify, as Hans von Spakovsky recounted on National Review Online recently. She could have held no reasonable doubts about this, after the committee passed the resolution rejecting her invocation of the Fifth Amendment and directing her to testify, let alone after the committee reminded her of that fact in its February 2014 letter recalling her to testify.

Second, Ms. Lerner’s defenders are wrong on the law. Representative Cummings asserts in his letter to Speaker Boehner that the committee cannot hold Ms. Lerner in contempt because the committee did not demonstrate to Ms. Lerner the “certainty” that “a contempt prosecution was inevitable.”

It strains credulity to suggest that an eventual contempt prosecution must be “inevitable” in order for a witness to be held in contempt at the outset of the process. After all, the committee itself has no power to prosecute the witness for contempt. As the House Counsel’s office explained, in a memorandum affirming the Chairman’s position, it is impossible for the committee ever to guarantee prosecution: The committee can only vote to recommend to the full House that Ms. Lerner be held in contempt, after which it falls to the full House to vote on the recommendation. And even then the matter is subject to the discretion of the U.S. Attorney to present the matter to the grand jury for indictment. (It is worth recalling that the House voted in 2012 to hold the attorney general in contempt, for his refusal to comply with the House Oversight Committee’s subpoena for documents regarding the “Fast and Furious” gunrunning scandal — and the U.S. Attorney has never prosecuted him.)

And in fact, the law sensibly does not require such a showing of “certainty” in order for the committee to begin the contempt process. The Supreme Court’s leading cases on this question — Quinn v. United States (1955), Emspak v. United States (1955), and Bart v. United States (1955) — certainly require no such thing. Rather, as the Court explained in Quinn, Ms. Lerner merely must be “clearly apprised that the committee demands [her] answer notwithstanding [her] objections” before she can be convicted for contempt. (And again, Ms. Lerner is not yet being convicted, or even prosecuted for contempt — she is merely being considered for a committee vote to recommend that she be held in contempt.) Even at this early stage in the process, the record shows that the committee easily satisfies that standard.

Ms. Lerner’s supporters’ assertions notwithstanding, the committee is not required to utter certain magic words in order to give rise to a contempt vote. Rather, the question is whether (as the D.C. Circuit put it Miller v. United States, following the Supreme Court precedents) “on the whole record it seems clear that [the witness] had a right to leave the hearing thinking that the direction to answer” was “suspended” or “abandoned.” And unlike the witness in Miller, as to whom the chairman of that committee “agreed” that the witness was not obligated to answer questions, it cannot reasonably be suggested that the committee released Ms. Lerner from the hearings absolved of her obligation to answer its questions. Rather, as with the witness in Presser v. United States (another D.C. Circuit case following the Supreme Court precedents), the record makes clear that Ms. Lerner “could not have failed to understand” that she “was being told to answer” the committee’s questions. Her refusal to answer the questions, despite that understanding, leaves her with no excuse to avoid a contempt vote.

Having served as White House counsel, I recognize as well as anyone the fundamental constitutional and practical stakes at issue when Congress investigates an administration, or when an administration defies Congress’s investigation. Such matters must always be handled with care by all parties to the process. The rights protected by the Fifth Amendment, and the obligation to comply with congressional subpoenas, must never be taken lightly.

But it is the very gravity of those stakes that requires all parties to this controversy to take seriously the legal standards governing these proceedings, and to interpret and apply them in good faith. The Supreme Court and the lower courts do not require a committee to utter certain “magic words” in rejecting a witness’s refusal to testify, nor do they require the committee to guarantee the witness’s future prosecution (by uncontrolled third parties) before voting to recommend the witness be held in contempt. The House Counsel was right to reject such erroneous arguments.

— C. Boyden Gray served as White House counsel from 1989 to 1993.