Former tax official Lois Lerner’s confrontation with Congress over a potential contempt citation may get emphatically more dramatic, depending on how far back into congressional history House Republicans want to reach.
Deep in the recesses of congressional power — and in precedent stretching back to the 18th century — is the ability to pursue “inherent contempt” against individuals, including the right to imprison a person in the Capitol to compel compliance with lawmakers’ authority.
Congress hasn’t exercised inherent contempt power since 1935 and there’s no suggestion that lawmakers are actively considering the option in Lerner’s case.
But House attorneys, and lawyers for the former Internal Revenue Service official, are looking at the potential legal paths as House leaders consider first whether to take a contempt citation to the floor and, if it passes, whether the Justice Department will pursue prosecution.
The House Committee on Oversight and Government Reform voted on party lines to recommend the full House hold Lerner in contempt and refer her to the Justice Department for refusing to testify before the committee on allegations of political targeting at the IRS of conservative political groups seeking tax-exempt status. The GOP members said Lerner, who resigned from the IRS last year under fire for her role as the head of the office at the heart of the controversy, waived her Fifth Amendment privilege by delivering an opening statement declaring her innocence before the panel last year.
Her attorney, Bill Taylor of Zuckerman Spaeder, on Monday wrote to House Speaker John A. Boehner of Ohio and Majority Leader Eric Cantor of Virginia asking that Lerner have an “opportunity to present to the House” the reasons why it shouldn’t hold her in contempt.
Cantor suggested this week that a vote on whether to recommend a contempt prosecution against Lerner would likely come in May.
It’s not clear whether the Justice Department would pursue a prosecution, raising the question of what House Republicans will do if the contempt charge dies at the department. The inherent contempt authority leaves open the possibility that Congress can pursue the matter itself.
Bribers and Delinquents
Congress’ authority to independently try and detain an individual has twice been upheld in the Supreme Court — in 1821 and 1927 — and there’s a colorful history of hauling delinquents before the House chamber.
The House first pursued inherent contempt proceedings in 1795 against two men accused of offering bribes to members. Congress would initiate 13 more inherent contempt cases over the course of the next six decades. In fact, the criminal contempt statute — the one facing Lerner — was devised as an alternative in 1857 because trying witnesses at the bar of the House chamber was taking too much time away from legislative duties.
The people rounded up by the sergeant-at-arms ranged from would-be bribers to an attorney general’s brother who was imprisoned in 1927 for refusing to comply with a subpoena in a Senate investigation of the lack of prosecution of allegations of antitrust violations. The offending witness is supposed to be locked up in the Capitol, but Congress also has turned them over to the city jail.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.