Friday, May 9, 2014
On Wednesday by a vote of 224 to 187 (later updated to 231 to 187 according to press reports) the House of Representatives approved House Report 113-415, which included a resolution that Lois Lerner be found in contempt of Congress "for refusal to comply with a subpoena duly issued by the Committee on Oversight and Government Reform." Relatedly, the House also approved by a vote of 250 to 168 a resolution "[c]alling on Attorney General Eric H. Holder, Jr., to appoint a special counsel to investigate the targeting of conservative nonprofit groups by the Internal Revenue Service." Both votes have the effect of passing the ball to the Department of Justice, as pursuant to 2 U.S.C. § 194 and the House Report the contempt matter will be referred by the Speaker of the House to the U.S. Attorney for the District of Columbia (currently Ronald C. Machen Jr.). While 2 U.S.C. § 194 provides that the U.S. Attorney has a "duty . . . to bring the matter before the grand jury for its action," it is not clear that this duty is absolute, especially where there may be constitutional grounds (i.e., Ms. Lerner's invocation of her Fifth Amendment right against self-incrimination) barring a conviction. The potential penalty for contempt of Congress under 2 U.S.C. § 192 is a fine of not less than $100 nor more than $1,000 and imprisonment of not less than one month and not more than twelve months. There may also be other ways for Congress to pursue Ms. Lerner given this contempt finding, although the House Report does not indicate that Congress will seek to pursue them.