The House voted Wednesday to hold disgraced IRS official Lois Lerner in contempt of Congress for refusing to testify about the tax agency’s targeting of conservative non-profit groups. While most Republicans said the act was largely symbolic, the chamber technically has the authority to unilaterally arrest her now.
The underlying offense which Lerner allegedly violated (on national television) is 2 U.S.C. § 192, a law passed by Congress in 1857 making it a federal crime for someone to appear before Congress and refuse to testify in answer to questions posed to her by committee members.
Although citizens have a Fifth Amendment right not to testify if their answers might subject them to criminal prosecution, Lerner waived her right to “take the Fifth” by asserting her innocence to the committee before claiming the privilege against self-incrimination.
Legally speaking, if an individual claims his constitutional right against self-incrimination, he must do so without responding in any way to the questions.
Normally the U.S. Department of Justice would prosecute such a criminal contempt citation, and Wednesday’s citation has been referred to U.S. Attorney Ronald Machen for prosecution. If convicted, Lerner could face up to twelve months in jail and fines up to $100,000.
Machen refused to prosecute Attorney General Eric Holder for contempt of Congress, which is hardly surprising because Holder is Machen’s boss, and Machen was appointed by Holder’s boss, President Obama.
Given the political dynamics, it’s also unlikely Manchen would prosecute Lerner. However, Speaker John Boehner could arrest her.
The Supreme Court upheld the authority of the House or Senate sergeant at arms to arrest and incarcerate someone held in contempt of Congress in its 1927 case McGrain v. Daugherty. So without a doubt Boehner could issue a warrant for Lerner’s arrest, and Irving has the authority to put her in handcuffs and frog-march her into a police car to take her to the Capitol, where she could sit behind bars.
According to Roll Call, the authority hasn’t been used in a situation like Lerner’s since 1935. There is currently no indication that House Republicans are discussing the option.