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In Showdown With Lerner, House Imprisonment Not Out of the Question

Being physically imprisoned in the Capitol is one thing, but even becoming the target of a congressional investigation means sacrificing a few freedoms, according to Raymond Shepherd, the head of Venable’s congressional investigations practice.

“The Senate has more rules” guiding the protection and release of information in an investigation, Shepherd said. “On the House side, it’s the wild, wild West.”

Either the House or Senate can invoke inherent contempt without a concurring vote in the other chamber.

Sanctions as Incentives

Because of the doctrine of the separation of powers, some common-law rules of judicial court do not apply to the legislative branch. Attorney-client privilege, for example, is subject to the discretion of the investigating committee. Committees often respect the principle in practice, but it’s not guaranteed, according to Shepherd.

In inherent contempt cases, even a witness’s request for judicial review through a writ of habeas corpus historically has not gone far, and the review “may be relatively limited, compared to the plenary review accorded by the courts in cases of conviction under the criminal contempt statute,” according to a report on contempt procedure by the Congressional Research Service.

In 1934, for example, the Supreme Court denied a writ of habeas corpus to a petitioner in the custody of the Senate sergeant-at-arms in a case involving the destruction of documents requested by a Senate subpoena.

Yet in some ways, despite the trauma of being publicly tried on the House floor, inherent contempt is more lenient than the criminal contempt statute. Inherent contempt can be coercive — once the terms of a subpoena are met, the witness generally is released. But criminal contempt is punitive: The witness “generally will not be able to purge himself by testifying or supplying subpoenaed documents after he has been voted in contempt by the committee and the House,” the CRS report notes.

Because the criminal sanction is so final, the witness “lacks an incentive for cooperating” once the vote has taken place, according to CRS. So if information is the goal, inherent contempt, however dramatic, may actually work better.

Of course, that’s assuming the Justice Department actually follows through on a criminal contempt referral.

Even though the Justice Department has the “duty” to convene a grand jury in the event of a contempt citation under the criminal statute, courts have given prosecutors wide discretion on the issue.

Taylor, Lerner’s lawyer, did not respond to a request for comment on the possibility of an inherent contempt vote. Taylor has repeatedly dismissed the contempt proceedings as a partisan exercise.

And Oversight Chairman Darrell Issa, R-Calif., has developed a reputation as a passionate partisan critic of the Obama administration, and he and Attorney General Eric H. Holder Jr. have made little effort to disguise their animosity for one another in congressional hearings.

Just last week, Issa sent a letter to Holder alleging potential “harassment by the Justice Department,” in collusion with the IRS, “of groups engaged in otherwise lawful activity.” According to the letter, emails between Lerner and a Justice Department official prove the department “played a role in a government-wide effort to target political speech.”

Related links:

House GOP Puts Spotlight Back on IRS, Benghazi

Issa’s Antics Again Try GOP’s Patience, Complicate Party’s Message

Issa, Cummings Feud Boils Over

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