Lerner Won't Face Contempt Charges, Justice Department Says

Nearly two years after Lois Lerner infuriated Republican lawmakers by invoking her Fifth Amendment rights not to testify about her conduct at the Internal Revenue Service, the Justice Department announced on Wednesday that she will face no criminal contempt charges.

U.S. Attorney Ronald C. Machen Jr. in a letter to House Speaker John Boehner, R-Ohio, said despite a May 7, 2014, vote by the full House to hold Lerner in contempt, his department disagrees with the House’s interpretation of case law.

Lerner asserted her Fifth Amendment privilege not to testify at a hearing held by the House Oversight and Government Reform Committee on May 22, 2013, but prefaced her refusal to answer questions by saying she had “done nothing wrong.”

The Justice memo rejected the Republican-controlled panel’s argument that Lerner waived her privilege when she made that opening statement. “The committee focused on her assertions that she had done nothing wrong, had broken no laws, had violated no IRS rules, and had provided no false information to Congress,” the letter noted while citing lawmakers’ cases in point. “We respectfully disagree with this conclusion, however, because case law establishes that Ms. Lerner's general denials of wrongdoing did not amount to ‘testimony’ about the actual facts under the committee's review.”

Machen went on to say that Justice’s position for three decades has been that the law “does not eliminate a United States attorney's traditional prosecutorial discretion not to bring a specific matter before a grand jury. And, in light of the department's criminal charging policy, which provides that a federal prosecutor should ‘commence or recommend Federal prosecution’ of a person only ‘if he/she believes that the person's conduct constitutes a federal offense and that the admissible evidence will probably be sufficient to obtain and sustain a conviction,’ we have concluded it would not be proper to commence grand jury proceedings against a witness whose prosecution for contempt is barred by the Constitution.”

Republicans have long criticized the Justice Department for failing to bring charges against Lerner, whom they regard as politically biased against Tea Party and other conservative groups based on her emails and evidence that the IRS Exempt Organizations Division, which she headed before her resignation, delayed applications and singled out some for extra scrutiny based on their rhetoric.

"Today's announcement surprises no one,” said House Ways and Means Oversight Subcommittee Chairman Rep. Peter Roskam, R-Ill. “It has long been clear that this administration has no interest in providing accountability for the innocent Americans who had their civil liberties violated by the IRS. This is why the House also called on the attorney general to appoint an independent special counsel to investigate this targeting. Justice's decision not to prosecute Mrs. Lerner for her refusal to engage with Congress in no way clears her of wrongdoing…. We will continue to investigate all of the facts, hold her accountable for any criminal wrongdoing to which she was a party, and make commonsense reforms at the IRS to restore trust and ensure that there is no Lois Lerner 2.0." 

Lerner’s attorney, William Taylor III, released a statement to Government Executive on Wednesday, saying, “Anyone who takes a serious and impartial look at this issue would conclude that Ms. Lerner did not waive her Fifth Amendment rights. It is unfortunate that the majority party in the House put politics before a citizen’s constitutional rights. Ms. Lerner is pleased to have this matter resolved and looks forward to moving on with her life.”