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Issa Botched Contempt, Experts Say

Mar 12, 2014
Press Release

“Fatal” Procedural Error in Closing Down IRS Hearing Prematurely

Washington, D.C. (Mar. 12, 2014)—Today, Rep. Elijah E. Cummings, Ranking Member of the House Committee on Oversight Reform, released an independent legal analysis from two of the nation’s preeminent experts in Constitutional law and congressional contempt proceedings concluding that Committee Chairman Darrell Issa compromised any House contempt action against Lois Lerner when he rushed to adjourn the Committee’s hearing last Wednesday.

The analysis was authored by Morton Rosenberg, who served for 35 years as a Specialist in American Public Law at the Congressional Research Service (CRS), and was joined by Stan Brand, who served as House Counsel from 1976 to 1983 and “fully subscribes” to Mr. Rosenberg’s legal analysis and conclusions.

Both experts reviewed the full Committee proceedings on March 5 when Issa abruptly adjourned the hearing without allowing any Democrats to speak, silenced Ranking Member Cummings’ microphone when he sought recognition for his turn for five minutes under House Rule XI, and made a slicing motion across his neck while ordering Republican staffers to “close it down.” 

Issa later personally apologized to Cummings for his conduct.

Based on their review of the Committee’s proceedings and relevant case law, these experts now conclude that in his rush to close down the hearing, Issa committed a “fatal” procedural error by failing to meet the prerequisites required by the Supreme Court to hold a witness in contempt of Congress. 

Specifically, they conclude that by prematurely adjourning the hearing without first overruling Ms. Lerner’s Fifth Amendment assertion or directing her to answer the Committee’s questions, Issa failed to take the basic—and Constitutionally required—steps necessary to hold her in contempt.

The experts also conclude that the Committee cannot remedy these deficiencies because Issa officially “adjourned” the hearing and forfeited the ability to recall Lerner under the subpoena he issued for her appearance. 

In a letter transmitting this legal analysis to House Speaker John Boehner, Cummings wrote:  “Although I accepted Chairman Issa’s apology, it appears that his actions last week in closing down the hearing had significant negative legal consequences that now bar the House of Representatives from successfully pursuing contempt proceedings against former IRS official Lois Lerner.”

Cummings also lamented the fact that Issa rejected an offer from Lerner’s attorney to testify if given a one-week postponement until March 12, writing:  “rather than obtaining hearing testimony directly from Ms. Lerner, all the American people have to show for Chairman Issa’s partisan actions over the past month is a botched contempt proceeding.”

In addition to the legal analysis from Mr. Rosenberg and Mr. Brand, numerous other legal experts have identified defects in Issa’s contempt proceedings.

Click here for the legal analysis from Mr. Rosenberg and Mr. Brand.

Click here for the letter from Cummings to Boehner.

113th Congress