On May 7, 2014, Republican leaders plan to bring to the House floor a resolution introduced by Chairman Darrell Issa to hold former IRS official Lois Lerner in contempt of Congress. Below are key resources for Members and staff regarding the McCarthy era legal precedent for this resolution, statements from more than 30 independent legal experts concluding that the resolution is fatally flawed under the Constitution and Supreme Court rulings, and additional reports, letters, and statements.
McCarthy Era Legal Precedent
Dear Colleague on McCarthy Era Precedent
Ranking Member Cummings urged his colleagues to vote against the contempt resolution, writing that “Chairman Darrell Issa is attempting to do something even Senator Joseph McCarthy could not do in the 1950s."
McCarthy Hearing Transcript
In 1954, Senator Joseph McCarthy tried-and failed-to obtain a criminal conviction of an American citizen after she asserted her right not to testify under the Fifth Amendment. The witness repeatedly professed her innocence, and like Chairman Issa, Senator McCarthy argued that Ms. Hoag had waived her Fifth Amendment rights.
United States v. Hoag
Two years later, a Federal District Court ruled against Senator McCarthy’s legal theory, holding that “the defendant did not waive her privilege under the Fifth Amendment" and that she was “entitled to a judgment of acquittal on all counts."
Congressional Research Service Report
To identify the last time Congress disregarded an individual’s Fifth Amendment rights, held that person in contempt, and pursued a criminal prosecution, the nonpartisan CRS went back more than four decades to identify a series cases spanning from 1951 to 1968. In almost every case, juries refused to convict these individuals or Federal courts overturned their convictions.
Conclusions of Independent Legal Experts
Dear Colleague on Independent Experts
Ranking Member Cummings urged his colleagues to vote against the contempt resolution, writing that “More than 30 independent legal experts have now come forward to conclude that the contempt resolution being brought to the House Floor this week by Oversight Committee Chairman Darrell Issa is fatally flawed and will likely be thrown out of court."
Conclusions of Experts That Lerner Did Not Waive Her Fifth Amendment Rights
Multiple independent legal experts have come forward to conclude that Ms. Lerner did not waive her Fifth Amendment rights when she professed her innocence at the Committee’s hearing on May 22, 2013.
Conclusions of Experts That Contempt Proceedings Are Fatally Flawed
More than 30 independent legal experts conclude that Chairman Issa botched the contempt proceeding when he abruptly adjourned the Committee’s hearing on March 5, 2014. In an effort to prevent Ranking Member Cummings from speaking, Chairman Issa rushed to end the hearing, ignored the Ranking Member’s repeated requests for recognition, silenced the Ranking Member’s microphone, and drew his hand across his neck while ordering Republican staff to “close it down."
Cummings Request for Hearing with Experts-Rejected
On June 26, 2013, Ranking Member Cummings wrote to Chairman Issa requesting a hearing with legal experts before voting on this grave Constitutional question. He wrote: “rushing to vote on a motion or resolution without the benefit of even a single hearing with expert testimony would risk undercutting the legitimacy of the motion or resolution itself." More than nine months later, no hearing has been held.
Lerner’s Counsel Request to Address House of Representatives-Rejected
On April 28, 2014, Ms. Lerner’s attorney wrote directly to Speaker Boehner and Majority Leader Cantor to “request an opportunity to present to the House the reasons why it should not hold Ms. Lerner in contempt." This request was refused.
Additional Materials
Opening Statement of Ranking Member Cummings at Committee Contempt Vote
“I speak to those who are reading the transcript of today’s proceedings 50 or 100 years from now and are trying to understand why Congress-in the year 2014-tried to strip away an American citizen’s rights under the Fifth Amendment of the Constitution. I want them to know that Members of this body believed this vote was a rejection of the Constitutional principles we are sworn to uphold. And I want them to know that I objected."
Minority Views Opposing Contempt Resolution
“We oppose Chairman Issa’s efforts to re-create the Oversight Committee in Joe McCarthy’s image, and we reject his attempts to drag us back to that shameful era in which Congress tried to strip away the Constitutional rights of American citizens under the bright lights of hearings that had nothing to do with responsible oversight and everything to do with the most dishonorable kind of partisan politics."
Democratic Staff Report on 39 Interviews of IRS and Treasury Employees
On May 6, 2014, Ranking Member Cummings issued a report that made public key portions of all 39 transcribed interviews conducted by Committee staff of witnesses from the IRS and the Treasury Department. Based on these interviews, the report finds no evidence of White House involvement or political motivation in the screening process for tax-exempt applications.
Democratic Efforts to Release Full Interview Transcripts-Rejected
Chairman Issa promised in June 2013 that “these transcripts will all be made public," but he has repeatedly blockedefforts by Ranking Member Cummings to do so. Although Chairman Issa claimed that releasing the transcripts could provide future witnesses with a “roadmap" to the Committee’s questions, he has repeatedly leaked excerpts of the transcripts and allowed select reporters to review multiple transcripts in their entirety.
