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Issa's Restraint at IRS Hearing Could Benefit GOP

Issa's Restraint at IRS Hearing Could Benefit GOP

By Caitlin Huey-Burns - May 23, 2013

Republicans have cautioned party lawmakers investigating the politically charged IRS controversy against overplaying their hand. If Wednesday’s House Oversight Committee hearing is any indication, Chairman Darrell Issa is paying heed -- at least for now.

The California lawmaker, who recently held Attorney General Eric Holder in contempt of Congress and has led controversial hearings on the administration’s handling of the Benghazi terrorist attacks, dismissed key IRS official Lois Lerner from testifying after she invoked her Fifth Amendment right to remain silent.

But there first appeared to be a chance that the committee would make her stay.

Lerner pled the Fifth, as she had said she would, but not until she made a statement. “I have not done anything wrong. I have not broken any laws. I have not violated any IRS rules or regulations, and I have not provided false information to this or any congressional committee,” she said, reading from prepared remarks. “Because I am asserting my right not to testify, I know that some people will assume that I have done something wrong. I have not.”

Issa argued that testimony from Lerner, who leads the IRS tax exempt division and admitted earlier this month that the agency applied extra scrutiny to conservative groups, was critical and asked her to reconsider.

South Carolina Republican Rep. Trey Gowdy, a former federal prosecutor, demanded that Lerner remain to answer questions, since she gave an opening statement and thereby waived her Fifth Amendment right.

“You don't get to tell your side of the story and not be subject to cross-examination," Gowdy said, drawing applause from a few audience members. "She ought to stand here and answer our questions.”

But Issa didn’t oblige. After asking Lerner to confirm the written answers she gave the Treasury Department’s inspector general, he allowed her to leave. Every member of the committee takes a pledge to honor the Constitution, he said, and he urged his colleagues to honor Lerner’s right. Issa said he followed the advice of his committee counsel to dismiss the witness instead of requesting that she anguish in front of dozens of cameras or repeat her plea dozens of times.

After nearly five hours of testimony from the other witnesses, the chairman left his committee hearing open and in recess and said he would look into calling Lerner to appear again.

“You can’t say what you want to say and then stop. What she did today was testimony under oath,” Issa told RCP. He explained that he asked Lerner if she would like to give opening remarks, thinking she would use the opportunity to assert her right prior to a statement. “She is represented by competent counsel,” he said.

Whether Lerner did in fact waive her right by speaking first depends on whom one talks to; law experts are skeptical, given that her statement was made during a congressional hearing.  Ranking Member Elijah Cummings told RCP he disagreed with Issa’s interpretation. At the hearing, Cummings, himself a lawyer, reminded Gowdy that a hearing room is not a courtroom and Lerner’s constitutional protection had to be honored.

Issa isn’t typically empathetic or restrained. He has accused Lerner of providing false or misleading accounts to Congress in previous conversations with members of Congress. But he accomplished two ends on Wednesday. While the beginning of the hearing and Lerner’s exit made for some drama and headlines, he avoided what could have been a major distraction. (Recall a 1999 oversight hearing where then-Chairman Dan Burton let former White House official Mark Middleton be questioned for more than half an hour after Middleton took the Fifth in an investigation of a Clinton campaign funding controversy. That tactic brought a scathing response from then-ranking member Henry Waxman, who stated in a letter to Burton: “Our investigation has become far better known for its abuses rather than its results.”)

Also, by saying he intends to call Lerner back before the committee, Issa ensured that the story and his committee will stay in the spotlight heading into the Memorial Day recess, when congressional news tends to tamper off.

Former GOP Rep. Tom Davis, who was once chairman of the same committee, told RCP that keeping the public interested in the issue is critical. “As a chairman, you don’t want to overreach yourself because you don’t want to lose the crowd,” said Davis, who has been in communication with Republicans investigating the IRS episode and was on Capitol Hill Wednesday. “As long as you’re moving incrementally, you hold everyone’s attention. … The chairman is smart at this point to keep gathering facts and keep public interest high.”

The IRS controversy has been a prominent story for several days. But many people could lose interest as summer kicks off and members spend time in their districts next week. Issa said the committee will have additional transcribed interviews while members are away and he will pursue testimony from Lerner.

Polling shows that Issa’s investigations into Benghazi and the “Fast and Furious” federal gun trafficking program largely have been met by a collective yawn. And, despite the recent controversies surrounding the IRS and the Justice Department’s secret subpoena of reporters’ phone records, President Obama’s approval rating has remained steady.

The public may pay more attention to the IRS investigation because they are more familiar with the agency, lawmakers from both sides of the aisle say. And Republicans hope to heighten that interest by noting the important role the IRS will play in implementing the federal health care law. GOP lawmakers hammered away at that connection during the oversight panel’s hearings and in previous ones.

Issa trained his focus Wednesday on the IRS’s failure to notify Congress of an internal investigation into the wrongdoing. Democrats and Republicans joined in the outrage. Former agency Commissioner Doug Shulman said he did not have all the facts to give to the committee when he testified several months ago that there was “absolutely no targeting” being done by the IRS. Issa scolded Shulman for being “derelict in your duty.” Cummings expressed similar dismay and pressed Shulman as to why he did not come back to Congress after he had learned the facts. Democratic Rep. Steve Lynch of Massachusetts also fired away at Shulman, saying his misled Congress and did nothing to correct the misbehavior in his agency.

Shulman said he accepted that the transgressions happened on his watch and that he was “very sorry,” but he declined to take responsibility for the actions of whomever ordered the extra scrutiny of conservative groups. Pressed repeatedly by GOP Rep. Jim Jordan, Shulman said he never mentioned anything about the targeting to anyone at the White House when he visited there more than 100 times in 2010-2011.

Issa grilled the agency’s inspector general, J. Russell George, who published an audit of the inappropriate activity last week. Issa questioned the integrity of the report and asked why the IG’s office did not notify Congress about the internal investigation. He pointed to obtained emails between his committee’s staff and George’s office that suggested reports of the findings were repeatedly delayed. George said it would have been “impractical” to talk about an ongoing audit with Congress before it was completed. George also told members that he would meet with the new acting IRS commissioner, appointed by President Obama last week, within the next few days to discuss the report and offer advice.

The IG’s office provided the committee Tuesday night with responses from Lerner to its questioning. “To the best of my knowledge, no individual or organization outside the IRS influenced the creation of these criteria,” she wrote of the special scrutiny given some applications for tax-exempt status. She also recounted a timeline of when she learned about the events in question.

Still, after several hearings, lawmakers still don’t know who generated the list of organizations that should receive the extra scrutiny and why. “We have yet to hear a name!” Jordan lamented to RCP.

Issa said he and Cummings agreed to hold further hearings and hope to invite some of the victims of the targeting to appear. But Issa and others still hope to get those key questions answered by Lerner.

As to whether Lerner should have been asked to stay after her plea, “that’s the chairman’s call,” Jordan told RCP. “You’re just going to have her sit there for six hours and never answer questions? In some ways it’s just a practical concern.” He also said he wanted to hear from Lerner to figure out whether someone higher up in government ordered the targeting. “She is at the heart of the storm.”

Of course, there is still a long way to go in these investigations. Several more hearings will take place, and the public will continue to hear from Issa and his committee. But the chairman’s handling of this case may serve as a barometer of whether Republicans are learning the lessons from 1998, when it lost seats in the midterms after pressing the impeachment case against President Clinton. 

RCP White House correspondent Alexis Simendinger contributed to this report.

Caitlin Huey-Burns is a congressional reporter for RealClearPolitics. She can be reached at chueyburns@realclearpolitics.com. Follow her on Twitter @CHueyBurnsRCP.

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