House panel votes on pressing IRS figure to talk
The Oversight and Government Reform Committee, in a 22-17 party line vote, ruled that Lerner, who headed the division that oversaw nonprofits, had forfeited her right to invoke the Fifth Amendment and refuse to answer questions when she appeared before the panel on May 22.
The GOP-written resolution said Lerner gave up her right to silence when she opened the hearing with a statement denying that she had done anything wrong.
"A witness may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details," it said.
Committee Chairman Darrell Issa, R-Calif., said that after consulting with House lawyers he was certain that Lerner had waived her Fifth Amendment rights. Witnesses, he said, cannot "give one side of the story and not allow themselves to be cross-examined."
Some Republicans who have aggressively pursued the investigation against alleged IRS discrimination against conservative groups saw Lerner's refusal to talk as more than just a legal issue. "Lois Lerner is in fact a poster child for a federal bureaucrat thumbing her nose at Congress," said Rep. John Mica, R-Fla. He said the case was a "showdown" over who is in control of government.
Neither Lerner nor her lawyer were present at Friday's vote and Democrats on the committee said Republicans should have allowed testimony from legal experts on Fifth Amendment protections for people testifying before Congress.
"I want to hear Ms. Lerner's testimony," said Rep. Elijah Cummings of Maryland, top Democrat on the committee. "But we must respect the constitutional rights of every witness who comes before the committee."
Lerner's attorney, William W. Taylor, in an email this week, denied that Lerner had waived her rights by making an opening statement.
"Protesting your innocence and invoking right not to answer questions, which is what she did, is not a waiver. Legions of authority on our side," he wrote.
The vote opens up the possibility that Lerner will be summoned back to the committee for another round of questioning. Issa dodged a Democratic question about whether Lerner might be offered limited immunity in exchange for her testimony. If she again invokes the Fifth, she could face contempt charges.
Lerner, now on administrative leave, was a high-ranking IRS official in Washington who oversaw the agency's Cincinnati workers who screened applications for tax-exempt status. The IRS has apologized for imposing tough scrutiny on conservative groups who applied for that designation. It has since emerged that progressive groups also appeared on agency screening lists and that some suffered similar treatment.
Three congressional committees are investigating the IRS treatment of conservative groups, as is the Justice Department and the new leaders of the IRS itself. House Democrats are trying to expand the investigation to include how progressive groups were treated.
On Thursday, the controversy moved in another direction as a clash escalated between the Treasury Department inspector general who investigated the IRS and congressional Democrats who called his probe of the agency misleading.
In a letter to lawmakers released Thursday, J. Russell George said his investigation found "progressives" was not among the inappropriate terms IRS screeners used to decide if groups merited close scrutiny for political work. Too much political activity can disqualify an applicant for a tax-exempt designation.
But George also wrote that "additional research" by his investigators found that of 298 applicants for tax-exempt status that the IRS flagged for possible political involvement between 2010 and 2012, six had "progress" or "progressive" in their names. Fourteen other cases with "progress" or "progressive" in the group's name were not sidetracked for additional examination, he wrote.
While 30 percent of such groups got special attention because of possible political work, every applicant for tax-exempt status with "tea party," ''patriots" or "9/12" in their names was set aside for screening, George said.
The term "progressives" did appear on some lists released earlier this week by House Democrats that also included "tea party" and that IRS workers used to watch for groups that might merit tough exams. But George's letter noted that "progressives" appeared on a different part of those lists and said that such groups were sent to different screeners from the ones who processed tea party applications.
Rep. Sander Levin of Michigan, top Democrat on the House Ways and Means Committee, said George should have revealed the appearance of progressive groups on the lists and the second set of screeners before now.
"The failure of the IG's audit to acknowledge these facts is a fundamental flaw in the foundation of the investigation and the public's perception of this issue," said Levin, using the abbreviation for inspector general.
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