GOP congressman and House Committee on Oversight and Government Reform chairman Darrell Issa's quest to uncover the smoking gun of the IRS scandal story — the missing Gotcha! moment that will cause the Obama administration to crumble under the weight of its own corruption — has run aground lately, primarily due to the people in Issa's cross hairs pleading the Fifth Amendment. But that doesn't mean Issa is quite yet ready to give up.
According to a report in the Huffington Post, Issa and his allies are considering making a rare argument and a procedural move in order to force former IRS official Loris Lerner to testify. Lerner used to be the head of the IRS department tasked with figuring out whether to grant tax-exempt status to groups claiming to be apolitical in nature and focused primarily on "social welfare." Republicans have charged that the IRS disproportionately targeted right-wing organizations for review. Lerner resigned and has spoken to Issa's committee, but has also refused to answer some questions by pleading the Fifth.
In response to Lerner's invocation of this constitutional right, Issa is now arguing that because the former government official did speak with the committee before pleading the Fifth, she waived her right to do so and is thus eligible to be held in contempt of Congress and even possibly face criminal charges. A report by the Congressional Research Services that is pushing Issa's argument calls Lerner "critical to the Committee’s investigation[.]" Further, the report states that "Without [Lerner's] testimony, the full extent of the IRS’s targeting of Tea Party applications cannot be known, and the Committee will be unable to fully complete its work."
One potential problem with Issa's latest move, however, is the fact that no American has ever been successfully prosecuted for pleading the Fifth before Congress. Indeed, even the attempt to prosecute on such grounds is rare, with most of the examples in recent history having occurred during the McCarthyite years of the 1950s.
Most of the cases involved the House Un-American Activities Committee and its communist witch-hunts in the 1950s. But one that is particularly instructive involves a Buffalo, N.Y., woman named Diantha Hoag, who was fired from her factory job after Sen. Joe McCarthy (R-Wis.) and his Senate Committee on Government Operations accused her of being a communist and she pleaded the Fifth.
In that case, Hoag answered many more questions than Lerner did. She listed several places where she had lived, said she worked at a Westinghouse plant, and told committee members that she knew Westinghouse contracted with the military. Lerner never went beyond a short opening statement professing her innocence.
Hoag flatly refused to answer questions about her associates and any communist connections she may have had.
When McCarthy attempted to compel her testimony through the courts, as Issa is now threatening, a judge did not look kindly on the bid, declaring: “I reach the conclusion that the defendant did not waive her privilege under the Fifth Amendment and therefore did not violate the statute in question in refusing to answer the questions propounded to her. Therefore, I find that she is entitled to a judgment of acquittal on all counts.”
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