1984 Opinion roadblock to Lerner Contempt of Court prosecution

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Darryl Issa | Lois Lerner
Darryl Issa | Lois Lerner

WASHINGTON, July 20, 2014 — Lois Lerner can sleep soundly at night. The contempt-of-Congress train has left the building.

Darrell Issa’s Oversight and Government Reform Committee has learned that an 1984 legal opinion precludes prosecution of Lois Lerner, whom the Committee has held in contempt for her invocation of her asserting her Fifth Amendment right to refuse to testify concerning her participation in the IRS’s botched screening of political nonprofits.

Lerner’s unit was in charge of determining which groups applying for non-profit status and tax breaks would be approved. Congress is attempting to investigate whether Lerner directed her staff to pass over or delay approval for conservative groups based simply on ideology. The inspector general found the IRS used “inappropriate” words that suggest the IRS singled out conservative groups as ineligible for non-profit status.

However, a 1984 opinion proffered under President Ronald Reagan appears to allow Attorney General Eric Holder to pass on Contempt of Congress charges against Lerner. (See page 101 of pdf below)


Obama is not the first president to rely on this opinion. Bill Clinton and George W. Bush also cited the opinion to protect administration officials. Issa previously heard reference to the opinion in 2012 when Congress voted to hold the attorney general in contempt (see pdf here).

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As a country that follows its laws, we have to live by them. Even 30 years later. No matter how inconvenient.

The memorandum in part reads:

This memorandum memorializes our formal response to your request for our opinion whether, pursuant to the criminal contempt of Congress statute, 2 U.S.C. §§ 192,194, a United States Attorney must prosecute or refer to a grand jury a citation for contempt of Congress issued with respect to an Executive Branch official who has asserted a claim of executive privilege in response to written instructions from the President of the United States.

This memorandum memorializes our formal response to your request for our opinion whether, pursuant to the criminal contempt of Congress statute, 2 U.S.C. §§ 192,194, a United States Attorney must prosecute or refer to a grand jury a citation for contempt of Congress issued with respect to an Executive Branch official who has asserted a claim of executive privilege in response to written instructions from the President of the United States.

This memorandum memorializes our formal response to your request for our opinion whether, pursuant to the criminal contempt of Congress statute, 2 U.S.C. §§ 192,194, a United States Attorney must prosecute or refer to a grand jury a citation for contempt of Congress issued with respect to an Executive Branch official who has asserted a claim of executive privilege in response to written instructions from the President of the United States.

Read the entire document here:

 

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  • Tim Kern

    So, what is the limit? Is the entire Executive Branch thus insulated from the law?

    What is the limit on lawlessness, assuming there is one?

    …and a judicial opinion is not law.

  • acmaurer

    Yeah…that’s a pretty sketchy excuse. As a member of the military I always knew I was immune from prosecution for performing my official duties according to the law. But when I step outside the law, I am no longer shielded.
    The problem is we’ve gotten away from relying on the Constitution, the supreme law of the land, and instead rely on judicial opinion, which goes any way the wind blows.