U.S. Attorney for the District of Columbia Ron Machen.
U.S. Attorney for the District of Columbia Ron Machen. (Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.)

The House Committee on Oversight and Government Reform is expected on Thursday to hold former IRS official Lois Lerner in contempt. If the full House approves the contempt resolution, the U.S. attorney’s office in Washington must decide whether to bring criminal charges—which hasn’t happened since 1983.

Separately, the House Ways and Means Committee met Wednesday and voted to refer Lerner to the U.S. Department of Justice for possible criminal prosecution based on evidence that committee members say they uncovered about “IRS abuses.” Such referrals are more routine than contempt proceedings, according to lawyers familiar with the process, but it’s still rare to see criminal prosecutions.

Lerner’s attorney, Zuckerman Spaeder litigation partner William Taylor III, said in a statement Wednesday that the timing of the Ways and Means Committee’s vote was “odd,” since he and his client hadn’t heard from the committee and the committee never issued a report on its findings. He added the vote “affects nothing” because the Justice Department was already investigating the agency.

“Ms. Lerner has done nothing wrong. She did not violate any law or regulation. She did not ‎mislead Congress. She did not interfere with the rights of any organization to a tax exemption. ‎Those are the facts,” Taylor said.

Lerner has twice invoked her Fifth Amendment right against self-incrimination during hearings before the oversight committee on whether the IRS improperly targeted certain political groups that applied for tax-exempt status.

Before invoking the privilege during her first committee appearance on May 22, 2013, Lerner gave an opening statement denying any wrongdoing. By giving that statement, Lerner waived her Fifth Amendment privilege, the oversight committee contends.

Lerner invoked the Fifth Amendment again when she appeared before the committee on March 5.

If the House ultimately votes to holds Lerner in contempt, the matter will be sent to the U.S. Attorney’s Office for the District of Columbia, led by U.S. Attorney Ronald Machen Jr., under federal law. Refusing to testify or produce papers in a congressional investigation is a misdemeanor offense, carrying maximum penalties of one year in jail and a $1,000 fine.

The U.S. attorney’s duty is “to bring the matter before the grand jury” once it’s referred by Congress, according to the statute, but the Justice Department has long maintained that prosecutors have discretion.

The Justice Department “believes, properly, that the Congress cannot order a case to be presented to a grand jury,” said Joseph diGenova of Washington’s diGenova & Toensing, who served as the U.S. attorney in Washington in the 1980s. “That would violate the separation of powers.” He added that he thought Lerner’s behavior was “contemptuous” and that she did waive her Fifth Amendment right.

Stephen Ryan, head of the government-strategies practice at McDermott Will & Emery, said he didn’t see much legal precedent for finding Lerner waived the right. “I don’t think the court would find there’s been a waiver, based on a couple of sentences at the beginning of the hearing,” he said.

The last public official to face criminal prosecution following a contempt vote was Rita Lavelle, who oversaw the Environmental Protection Agency’s Superfund program. Congress held her in contempt for refusing to testify about management of the program. She was acquitted of contempt of Congress in court, but was found guilty in late 1983 of lying to Congress.

Since then, a string of high-ranking officials have been held in contempt by Congress, but none have faced criminal prosecution. In 1998, the Republican-led House oversight committee held former Attorney General Janet Reno in contempt for refusing to turn over documents during an investigation into the handling of campaign finance prosecutions. The full House never voted on the resolution.

In 2008, the House, led by Democrats, voted to hold former White House counsel Harriet Miers and former White House chief of staff Joshua Bolten in contempt for refusing to turn over documents concerning the firings of a number of U.S. attorneys. According to news reports from the time, the White House and Justice Department said they wouldn’t pursue charges.

The House filed a civil lawsuit against Miers and Bolten seeking compliance with the subpoena. A federal judge ruled in Congress’ favor, ordering Miers to testify and both Miers and Bolten to turn over certain documents, but the case was dropped in late 2009 after the parties reached a settlement.

In 2012, the House, led by Republicans, voted to hold Attorney General Eric Holder Jr. in contempt for not turning over documents related to a botched gun-smuggling sting operation known as Fast and Furious. The oversight committee filed a civil lawsuit against Holder.

The case is pending in the U.S. District Court for the District of Columbia. Judge Amy Berman Jackson denied the Justice Department’s early attempt to dismiss the lawsuit, finding the court did have jurisdiction over the dispute.

The Justice Department can bring contempt charges without a vote by Congress. Former Special Counsel Scott Bloch was charged in 2010 with contempt of Congress but later pleaded guilty to destruction of government property. The contempt charge was rooted in his failure to disclose information to congressional staff who were investigating the deletion of files from government computers in the Office of Special Counsel.

Unlike civil litigation, criminal prosecutions are punitive, meaning Lerner wouldn’t be forced to testify even if she were found guilty, said Stanley Brand of Washington’s Brand Law Group, who has represented high-profile clients facing congressional investigations.

The Ways and Means Committee referral to the Justice Department will proceed on a separate track from any contempt case, Ryan said. The committee’s referral is addressed to Holder, and Ryan said the Justice Department could keep the matter within Main Justice or send it to the U.S. attorney’s office in Washington.

The contempt proceedings and the Ways and Means Committee’s actions are “only related on the subject matter,” he said.

Contact Zoe Tillman at ztillman@alm.com. On Twitter: @zoetillman.