On Wednesday, a hearing of the House Oversight and Reform Committee turned Congress into a theater of the surreal. After Rep. Darrell Issa (R-CA), the committee’s chairman, closed a hearing without allowing any other member of the committee to speak, a screaming match without comparison in modern memory was set off in the halls of Congress.
The hearing centered around Lois Lerner, the Internal Revenue Service’s former director of Tax-Exempt Organizations. Lerner oversaw the group responsible for the 2011 scandal in which it flagged and separated applications for additional scrutiny based on certain search terms, saying it was concerned about the high volume of applications for organizations seeking social welfare group status.
While it was later proven that some groups did use social welfare group status to subvert campaign financing rules, the idea that the IRS used discriminatory practices to single out certain applications was seen as improper.
Even though the IRS targeted both conservative and progressive groups’ applications for additional review, many conservatives interpreted the IRS’s targeting of conservative groups as deliberate and possibly having roots that reached all the way to the White House. This attempt to paint a conspiracy theory that somehow implicated the president sharply divided the Oversight Committee and created tension that gave way between Chairman Issa and Ranking Minority Member Rep. Elijah Cummings (R-MD) on Wednesday.
Setting the stage
The first time Lerner appeared before the Oversight Committee, she invoked her Fifth Amendment protection against self-incrimination. The notion that Issa would call her to appear before the committee Wednesday after Lerner already “plead the Fifth” seemed morally conflicted. In legal circles, if done by a judge or arbitrator, such an action would be justification for a conduct hearing, as it constitutes an attempt to embarrass the witness.
The motivation for the hearing can be debated. Lerner’s attorneys told Issa that Lerner would possibly retract her assertion of her Fifth Amendment rights if Lerner were allowed to testify in a closed deposition before the committee in which the deposition “would satisfy any obligation she has or would have to provide information in connection with this investigation.” While Issa’s office insists that Lerner’s attorney agreed that Lerner would testify publicly, her attorney told the Huffington Post that Lerner has never waived her Fifth Amendment rights.
This is part of a Republican line of argument that, because Lerner gave a statement in regards to her involvement in the IRS scandal before “pleading the Fifth,” she is no longer subject to self-incrimination protections. Her attorney, Bill Taylor, argues that Lerner’s refusal to answer the committee’s questions have more to do with her safety than hiding anything, hence the request for a closed-door deposition.
“I advised the staff that calling Ms. Lerner knowing that she will assert her rights was not only improper but dangerous,” Taylor wrote to Issa, according to a letter obtained by The Hill. “Ms. Lerner has been the subject of numerous threats on her life and safety, and on the life and safety of her family. I left with the staff recent evidence of those threats.”
Lerner’s intention not to recant her Fifth Amendment invocation became clear Wednesday, as she repeatedly “plead the Fifth” to Issa’s questions.
The theater of the surreal
Frustrated, Issa closed the hearing 15 minutes into questioning, without giving the minority equal time to be heard. This is in direct violation of House Rule XI:2(j)(1), which states that the majority and minority shall have equal time to question a witness and that a committee member shall be allotted a due time — typically, five minutes — to speak, if so requested by the chair. Ranking Member Cummings immediately called to be recognized.
Following an adjournment and the after-the-fact recognition of Cummings after Issa attempted to dismiss the assembled audience, Issa cut Cummings off when Cummings started his forward statement for his question, saying, “We’ve adjourned. Close it down.” Issa then signalled for the microphones to be turned off by making a slashing motion across his throat.
“I am a member of the Congress of the United States of America. I am tired of this,” Cummings yelled from his hearing seat. “You cannot just have a one-sided investigation. There is absolutely something wrong with that. It is absolutely un-American.”
“I gave you an opportunity to ask a question, you had no question,” Issa responded, even as Cummings was preparing to ask his question.
Cummings asked Issa, “Chairman, what are you hiding?”
Committee member Rep. Gerry Connolly (D – Va.) said, “He’s taking the Fifth, Elijah.”
“It’s a trap!”
Issa was reportedly looking forward to Wednesday’s hearing. After years of investigations, he hoped that Lerner’s testimony would provide a definitive link to the administration’s role in the IRS scandal. At the very least, it would illuminate Lerner’s repeated invocation of her Fifth Amendment rights, which could be spun to infer that the Obama administration is still blocking access to the truth. This would be enough to help galvanize the Republican base ahead of the 2014 midterms and justify Issa’s tenacity on this issue. For weeks, Issa had been hyping Wednesday’s hearing as the day the truth would finally be heard.
What actually happened on Wednesday was the collapse of what many have come to see as a poorly-rigged set-up that has cost millions and inconvenienced many. Since the investigation began, many have come to the conclusion that Issa was looking for a particular truth, not just a simple truth.
In June 2013, it was revealed that there were 15 lists of search terms that targeted progressives. The first of these lists were drafted in August 2010 — a full month before any lists targeting conservatives were drafted. These lists were between 11 and 17 pages in length and included terms such as “Progressive,” “Tea Party,” “Medical Marijuana,” ”Occupied Territory Advocacy,” “’Healthcare legislation,” ”Newspaper Entities” and “Paying National Debt.”
Later in the same month, the Treasury Inspector General for Tax Administration Russell George revealed that Issa had explicitly asked that the report be limited to, and narrowly focused on Tea Party or “patriot” organizations. This, in part, fueled the controversy regarding the IRS’s targeting of conservative groups for social welfare application scrutiny.
Clarification of IRC Section 501(c)(4), which defines social welfare groups, actually pointed out that the IRS was doing its job by selecting certain applications for scrutiny, despite the fact that they went about it in a way that could constitute discrimination. The law specifically bans organizations that are lobbying or campaigning for a political candidate from receiving the denotation of social welfare organization. Due to the fact that they typically deal with controversial issues, social welfare organizations do not have to publicly disclose donor lists, and a large number of political organizations hid the source of their “dark money” by claiming to be a social welfare group.
It is known that 15 of the 50 top “dark money” donors in the 2012 presidential election were social welfare groups.
Finally, Issa has chastised Cummings’ release of the transcript of testimony from committee witnesses, including the complete interview in which an IRS manager in Cincinnati, a self-described conservative, took the blame for escalating the first conservative social welfare application for scrutiny.
Issa said in a letter that such disclosures could help future witnesses “devise testimony consistent with the narrative that previous witnesses presented to committee investigators.” This is despite the fact that Issa previously had released certain transcripts at his leisure.
A broken strategy
All of this represents a very long line of attempts — including allegations of State Department malpractice resulting in attack on the U.S. Consulate in Benghazi and the “Fast and Furious” gun controversy — to find a way to tarnish the president and his administration.
Taken in measure with other means, the congressional Republicans have shown extreme partisanship during President Obama’s tenure, including their 50 attempts to overturn the president’s signature achievement, the Patient Protection & Affordable Care Act , and this represents a sense of surrealness not typically expected in elected bodies.
There is an indication that the IRS investigation may have came to a close. “It may well be we have gotten to the bottom of it,” Issa told a reporter who asked about the state of the investigation. “At this point, roads lead to Ms. Lerner. The witness who to took the Fifth. That becomes — she becomes one of the key characters at this point. Had she been willing to explain those emails which were provided through separate subpoenas, then we could have perhaps brought this to a close. Without that, it may dead end with Ms. Lerner.”
Speaker of the House John Boehner (R-OH) has suggested that Lerner may be held in contempt based on Issa’s report. There is no indication that Issa will be held responsible for his breaking of House rules.