Democrats are circulating the analysis, written by Morton Rosenberg, who once worked with the Congressional Research Service, which indicated Issa failed to make clear to Lerner she risked contempt by not answering his questions during an aborted hearing on the IRS allegedly targeting conservative groups seeking tax exempt status, the Hill reported Wednesday.
Rep. Elijah Cummings, D-Md., the Oversight Committee's top Democrat, sent the analysis to Speaker John Boehner, R-Ohio, Wednesday with a note indicating Issa's actions "in closing down the hearing had significant negative legal consequences that now bar the House of Representatives from successfully pursuing contempt proceedings."
Rosenberg's analysis is the latest wrinkle in the House's attempts to secure Lerner's testimony. Lerner, considered the key figure in the investigation, last week invoked her Fifth Amendment right against self-incrimination and Issa adjourned the meeting. After he gaveled the meeting closed, Cummings chastised Issa for adjourning the hearing without any Democratic opening statement or question Lerner. Issa later apologized to Cummings.
Rosenberg and Stan Brand, House general counsel when Democrats controlled the chamber in the 1970s and 1980s, said Issa did not lay the groundwork to hold Lerner in contempt, the Hill said. They based their findings on a nearly 60-year-old Supreme Court precedent.
Rosenberg said Issa might have lost the chance to hold Lerner in contempt because he told her she could face charges if she didn't answer his question -- rather than telling her refusing to answer would lead to contempt charges.
"In sum, at no stage in this proceeding did the witness receive the requisite clear rejections of her constitutional objections and direct demands for answers nor was it made unequivocally certain that her failure to respond would result in criminal contempt prosecution," Rosenberg's analysis said. "The absence of such a demand, is fatal to any subsequent prosecution."
Frederick Hill, a spokesman for Issa, dismissed the analysis, saying, "This analysis, solicited on a partisan basis, is deeply flawed and at odds with the House's own expert legal counsel to the committee."
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