To date, this investigation has been characterized by a series of unsubstantiated accusations by Members of Congress with no evidence to support their claims, and today’s proceeding is the latest unfortunate example.
I often say I would like our Committee to operate more like a courtroom by gathering evidence in a responsible and impartial way before drawing conclusions or making judgments. If this were a courtroom, the first question to Ms. Lerner would have been, “How do you plead?" Ms. Lerner would have been able to state her innocence, and she never would have been forced to take the stand, swear an oath, or publicly assert her Fifth Amendment right.
In this case, Ms. Lerner’s attorney wrote to inform the Committee-before the hearing-that his client would exercise her Fifth Amendment right. But unlike in a courtroom, the Chairman issued a subpoena forcing her to appear, made her stand and swear an oath, and challenged her Fifth Amendment assertion by posing questions to her anyway. So now the Chairman wants the Committee to conclude, as a legal matter, that Ms. Lerner waived her rights because she made a statement professing her innocence.
Now, if this happened in a courtroom-which it can’t-a judge likely would hold a hearing on this question before making a ruling. Counsel would prepare written briefs with legal and historical precedents, and the judge would hear oral arguments from all parties involved before making a determination based on the facts and the law.
But again, that is not happening here. The Chairman is going about this in reverse. He is asking Committee Members to vote on his resolution first, without taking basic common-sense measures to help Committee Members make reasoned and informed decisions. Let’s look at the evidence now before the Committee:
Exhibit A is a letter from Ms. Lerner’s legal counsel, William Taylor, on May 20, 2013, clearly invoking her Fifth Amendment rights. I ask that this letter be entered into the record.
Exhibit B is a detailed letter from Ms. Lerner’s counsel on May 30 citing extensive legal precedent by the Supreme Court, Circuit Courts, and District Courts explaining that “a witness compelled to appear and answer questions does not waive her Fifth Amendment privilege by giving testimony proclaiming her innocence." The Chairman never responded to this letter or the legal precedents it contains. I ask that this letter be entered into the record.
Exhibit C is a statement from Stan Brand, who served as House Counsel from 1976 to 1983, stating: “I do not believe that Ms. Lerner’s brief introductory profession of innocence, in which she offered no substantive testimony or evidence constitutes a waiver of her Fifth Amendment rights." I ask that this document be entered into the record.
Exhibit D is a statement from Daniel Richman, a law professor who served as the Chief Appellate Attorney in the U.S. Attorney’s Office for the Southern District of New York, stating: “as a matter of law, Ms. Lerner did not waive her privilege and would not be found to have done so by a competent federal court." I ask that this document be entered into the record.
Exhibit E is a letter I sent to the Chairman on Wednesday citing additional authorities and requesting a hearing with legal experts-on both sides-so Members could consider this issue in a reasoned, informed, and responsible way. I ask that this document be entered into the record.
So with all this information now before the Committee, what is on the other side?
The Chairman has a memorandum from House Counsel on this issue that he has declined to let all Members of this Committee see. His position evidently is that only he and I can review this memo. So that memo is not in the record before us. In my letter to the Chairman on Wednesday, I asked that every Member be given the opportunity “to hear directly from the House Counsel and pose any questions they have about the legal standards and historical precedents he believes are controlling." But the Chairman declined to honor my request.
So here is what may happen if we continue down this path. The Republicans could adopt the resolution on a partisan vote. The Chairman could force Ms. Lerner to return and direct her to answer questions. Her attorney no doubt will disagree with the legal basis for the resolution, and Ms. Lerner will continue to assert the Fifth, after which the Chairman could schedule a vote to hold her in contempt and send the entire matter to federal court.
After all that happens, however, the record before the court will be the record we establish today:
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The Committee has held no hearings on this significant Constitutional issue.
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The Committee has taken no testimony from any legal experts.
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The Chairman never responded to the legal precedents from Ms. Lerner’s counsel.
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The Chairman never responded to a request by her counsel to testify before the Committee and answer Member questions.
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The Chairman declined my request for a meeting to allow Members to hear directly from House Counsel.
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The Chairman chose not to allow all Committee Members to review the opinion he received from House Counsel.
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And the Committee adopted no report or other analysis of the applicable legal provisions and the historical precedents.
Let me close by making clear that I want to hear Ms. Lerner’s testimony. I agree that she has information that is relevant to the Committee’s investigation. For example, I want to ask why she did not inform Congress in 2012 of the improper practices she discovered in 2011. But we must respect the Constitutional rights of every witness who comes before the Committee. And whatever your interpretation of the law is in this instance, we should all agree that this is not a responsible record to put forward because it undermines the credibility of this Committee and the legitimacy of the resolution itself.
So my request stands: I ask that the Committee first take the preliminary, common-sense step of holding a hearing to obtain testimony from legal experts before requiring Committee Members to vote on this very significant Constitutional question. Otherwise, as a Member of Congress who has sworn to uphold the Constitution, I cannot in good conscience support this resolution.
