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The key question here is whether Lerner was simply asserting her opinion that she is innocent or whether she was testifying about her version of the facts of the case, writes Orin Kerr, a professor at the George Washington University School of Law, on The Volokh Conspiracy legal blog.
Professor Kerr canvassed some criminal procedure law professors for their views on that matter.
“Opinions were somewhat mixed, but I think it’s fair to say that the bulk of responders thought that Lerner had not actually testified because she gave no statements about the facts of what happened,” Kerr writes. “If that view is right, Lerner successfully invoked her Fifth Amendment rights and cannot be called again.”
The view of these experts wasn’t unanimous, so the question remains an open one, Kerr concluded. It’s worth pointing out that Congress is not a federal courtroom. It is often a court of political opinion, and that is the basis by which Lerner ends up being judged.
To compel Lerner to testify, Congress would have to hold her in contempt, and get a judge to rule in favor of it. This could ignite a court battle that could bring lots of attention to the IRS scandal. Lerner might get sympathy as an individual in lawmakers’ cross hairs. Or she might not. Some on the right suggest that’s a gamble worth taking.
“Politically, it might even be worth losing the court battle: Litigation will only call more attention to the fact that Lerner doesn’t want to talk for mysterious reasons, which makes the IRS’s actions look that much shadier,” writes the right-leaning Allahpundit, on Hot Air!.
There’s also the jail possibility. If the House (or Senate) does hold Lerner in contempt, it has the inherent power to send the sergeant-at-arms to arrest and incarcerate her, until she agrees to comply with lawmakers’ demands, notes a 2012 Congressional Research Service report on contempt powers.
That’s largely a theoretical power, though. It hasn’t been used since the Senate jailed a former assistant Commerce secretary in 1934.