Lois Lerner, the IRS and The "Inherent Contempt" Power of Congress

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"Inherent Contempt" is a doctrine that gives Congress the power to bring "recalcitrant" witnesses in to testify, by force, if necessary.

In the case of the former IRS Director of the (tax) exempt department of the Internal Revenue Service, Lois Lerner, who has repeatedly refused to testify before Congress about her role in the political targeting of Conservatives, Republicans continue to appeal to the Justice Department to investigate possible infractions by Executive Branch employees in the Obama administration.

However, the Justice Department has not been forthcoming, and has instead, much to the chagrin of conservatives in Congress, appointed what some allege, is a partisan Justice employee as the lead investigator.

Conservatives have asserted the inappropriate appointment of Barbara Bosserman, to head the Investigation, because, they allege, she has been a financial contributor to the Obama re-election campaign, and has, therefore, a conflict of interest.

Additionally, conservatives claim that the Attorney General, Eric Holder, and the Department of Justice have been dragging their feet with respect to addressing the concerns of those targeted for unwarranted additonal scrutiny by the IRS.

Just today, the Ways and Means Committee has referred the case of Lois Lerner to the Justice Department with a list of alleged infractions, and the House is now faced with an impasse if the DOJ decides not to direct a Grand Jury to investigate the allegations.

But Congress is not without recourse, and this is where "Inherent Contempt" comes in.  According to this doctrine, Congress can compel someone to testify by "force" if necessary.  This is considered to mean that if a person refuses to testify before Congress or one of its committees, they can be arrested and jailed. Precedent exists in the following forms:

• "...In 1795, shortly after the Constitution was ratified, the House ordered its sergeant at arms to arrest and detain two men accused of trying to bribe members of Congress. The House held a trial and convicted one of them..."
• "...In 1821, the Supreme Court upheld Congress’s right to hold people in contempt and imprison them. Without this power, the court ruled, Congress would 'be exposed to every indignity and interruption, that rudeness, caprice, or even conspiracy, may mediate against it.'..."
• "...Later, in a 1927 case arising from the Teapot Dome scandal, the court upheld the Senate’s arrest of the brother of a former attorney general — carried out in Ohio by the deputy sergeant at arms — for ignoring a subpoena to testify..." (NYT 4 Dec 07)

Congress prepared itself to use "...inherent contempt in 2007 when it was ready to hold Joshua Bolten, Bush Administration Chief of Staff, and Harriet Miers, former White House Counsel, in contempt for  failing to comply with subpoenas in the United States Attorneys Scandal..."

[Background Information]:  In that case (from an article by Adam Cohen in the New York Times; December 4, 2007) "...Cases appear to have been brought against Democrats and blocked against Republicans to help Republicans win elections. The stakes have grown steadily: it now seems that innocent people, like Georgia Thompson, a Wisconsin civil servant, may have been jailed for political reasons. Congress has a duty to find out what happened..." See article HERE 

In that same article, Cohen reports that "... The Congressional Research Service issued a report in July [of that year] that confirmed Congress’s inherent contempt powers. It explained how they work: 'The individual is brought before the House or Senate by the sergeant at arms, tried at the bar of the body, and can be imprisoned in the Capitol jail.' Congress can do this, the report concluded, to compel them to testify or to punish them for their refusal to do so..."

He continues with:  "...Congress’s inherent contempt powers are not limitless. If it arrested noncooperating witnesses in the United States attorneys scandal — and there are more than just Mr. Bolten and Ms. Miers — then they would have the right to challenge their confinement in federal court. Ironically, they would rely on the habeas corpus right that the Bush administration has been whittling away..."

Back then, the shoe was on the other foot of the other political party, and Cohen expressed the following:

"...This country has seen far too much of this sort of dismissal of Congress’s authority. There is a simple way to avoid a constitutional showdown: If Congress holds witnesses in contempt, the Justice Department should enforce the subpoenas. Mr. Mukasey [then Attorney General] would need to focus not on the White House’s interests, but rather on his duty to ensure that the laws are faithfully executed..."

Today, it could be said, the same should be declared for Attorney General Eric Holder to "avoid a constitutional showdown."

And, today, House Ways and Means Committee member, Rep. Kevin Brady of Texas, told the Washington Examiner, in reference to the possibility of Congress utilizing "Inherent Contempt" to compel testimony from Lois Lerner, "...I think we'll deal with that, should that occur, but I think this too is an ongoing investigation, and, frankly, for the attorney general to turn a blind eye to this evidence would discredit him greatly...this is a very thorough, deliberate investigation...This congressional referral is commonplace when we find evidence of wrongdoing from the legislative branch...The Department of Justice prematurely claimed and announced that it would not be pursuing wrongdoing charges, which tells me that they are at this point not taking the investigation seriously,"

The Examiner's Joel Gehrke pointed out, that when Brady was pressed to rule out the idea of the House using the "inherent contempt" doctrine against Lerner, Brady "chose not to do so."

According to the House Oversight Committee Calendar, scheduled at tomorrow's (Thursday April, 10) full business meeting, will be the consideration of a "...Resolution Recommending that the House of Representatives Find Lois G. Lerner, Former Director, Exempt Organizations, Internal Revenue Service, In Contempt of Congress for Refusal to Comply With a Subpoena Duly Issued by the Committee on Oversight and Government Reform..."