the seating. [inaudible conversations] >> and since that hearing last month lois lerner has been placed on administrative leave with the irs. we're live this morning on capitol hill as the house oversight committee is meeting on whether lois lerner waived her right to remain silent at that hearing a month ago. ms. lerner was in charge of the irs' tax-exempt organizations office. she claimed she had done nothing wrong in regards to irs targeting of conservative groups. the committee this morning will discuss whether that decision to give a statement invalidated ms. lerner's fifth amendment rights which she asserted following the statement.

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[inaudible conversations] >> and, again, we are live on capitol hill as we await the start of this house oversight committee hearing and vote on whether lois lerner, who waived her right to remain silent at a hearing a ago of the house oversight committee, she was in charge of the irs' tax-exempt organizations office. she has since been placed on administrative leave. we expect this hearing to get under way in just a moment here live on c-span2. the u.s. senate is not in session today, they're out for their weeklong fourth of july

holiday break. senates yesterday passed bipartisan immigration legislation. the house has just gaveled in, members debating offshore energy and jobs legislation. you can see the house live on c-span this morning. [inaudible conversations] [inaudible conversations]

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>> the committee on overnight and government reform will come to order. the committee meets today to consider a resolution to determine whether lois lerner waive withed fifth amendment privilege against self-incrimination when she made a voluntary opening statement during the committee's hearing that began on may 22nd, 2013. the clerk will designate the resolution. >> a resolution of the committee on oversight and government reform. >> without objection, the resolution will be considered as read and open for amendment at any point. the text has already been distributed and in your -- and is in your folders. i now recognize myself for an opening statement. we're here today to resolve an important issue the committee and the united states house of representatives has. did lois lerner waiver fifth amendment privilege against self-incrimination during the committee hearing that began may

22, 2013? during the hearing that began on may 22nd, more than five weeks ago, i tried to be exceedingly cautious. i did not make a quick or uninformed decision on the waiver. because the decision is one that does not often get made and it is extremely important both to the discovery of congress and it duties and, quite candidly, toward the real question of whether or not people will come and give one side of a story and not allow themselves to be cross-examined. as chairman, it's my obligation to be fair and impartial and to lead this committee not on one side or the other, but to the greatest extent possible to make my bigs in con -- my decisions

in many concert with the parliamentarian, with house counsel and consistent with what we would want to have if and when the gavel moves to the other side of the aisle. my job as chairman is to bring the question to a vote so the committee could make a determination. as most know, when congressman goudy made his assertion during the hearing, i could have ruled just that, that she had waived. i felt it inappropriate to do it, recessed the committee hearing and informed ms. lerner that she was subject to recall after a decision was made. we have consulted and gotten advice with house counsel. their capacity as attorneys for the committee and for the congress is impartial. they have delivered to us both their opinion and the case law.

having now considered the facts and arguments, i believe lois lerner waived her fifth amendment privileges. she did so when she chose to make a voluntary opening statement. ms. lerner's opening statement referenced the treasury ig report and the department of justice investigation. and the assertions she previously had provided -- sorry, and the assertions that she had previously provided false information to the committee. she made four specific denials. those denials are at the core of the committee's investigation in this matter. she stated that she had not done anything wrong, not broken any laws, not violated any irs rules or regulations and not provided false information to this or any

other congressional committee regarding areas about which committee members would have liked to ask her questions. indealed, committee members -- indeed, committee members are still interested in hearing from her. her statement covers almost the entire range of questions we wanted to ask when the hearing began on may 22nd. today marks the 37th day since ms. lerner appeared. since that time i have considered the mart deliberately. the matter deliberately. i received letters from lerner's lawyers that presented her arguments clearly and completely. her letter will now be entered in the record without objection, so ordered. we considered it and sought appropriate counsel to reach our decision. counsel had her letter, her attorneys' letters and made

their determination and recommendation. and now it's time to put it to a vote. with that, i recognize the ranking member for his opening statement. >> thank you very much, mr. chairman. to date, this investigation has been characterized by a series of unsubstantiated accusations by members of congress with no evidence to sport be their claims. -- to support their claims. and today's proceeding is the latest unfortunate example. i often say that i would like our committee to operate more like a courtroom by gathering evidence in a responsible and impartial way before drawing conclusions or making judgments. if this were a courtroom, the first question to ms. lerner would have been how do you plead. ms. lerner would have been able to state her innocence, and she never would have been forced to take the stand, swear an oath or

publicly aearth her fifth -- assert her fifth amendment rights. in this case ms. lerner's attorney wrote to inform the committee before the hearing that his client would exercise her fifth amendment right. but unlike in a courtroom, the chairman issued a subpoena forcing her to appear, made her stand and swear an and challenged her fifth amendment aers by posing questions -- assertion by posing questions to her anyway. so now the chairman wants the committee to conclude as a legal matter that ms. lerner waived her rights because he made a statement professing her innocence. now, if this happened in a courtroom -- which it can -- a judge likely would hold a hearing on this question before making a ruling. counsel would prepare written briefs with legal and historical

precedents, and the judge would hear oral arguments from all parties involved before making a determination based on the facts and based on the law. but, again, this is not happening here. the chairman is going about this in reverse. he's asking the committee to vote on his resolution first without taking basic, common sense measures to help committee members, all committee members both republicans and be democrats, make reasoned and informed decisions. let's look at the evidence now before the committee. exhibit a is the letter from ms. lerner's legal come, william taylor, on may 20, 2013, clearly invoking her fifth amendment rights. and i ask this letter be entered into the record. >> without objection, so ordered. >> exhibit b from ms. lerner's

counsel on may 30th citing extensive legal precedent by be the supreme court, circuit courts and district courts explaining, and i quote: a witness compelled to appear and answer questions does not waive her fifth amendment privilege by giving testimony proclaiming her innocence. end of quote. the chairman never responded to this letter, to my knowledge, or legal precedents it contains. i ask that this letter be entered into the record. >> it's already in the record. >> exhibit c is a statement from stan brand who served as house counsel from 1976 to 1983 stating, and i quote: i do not believe ms. lerner's brief introductory profession of innocence in which she offered no substantive testimony or evidence constitutes a waiver of her fifth amendment rights. i ask that that document be entered into the record. >> without objection. >> thank you, mr. chairman. exhibit d is a at the same time from daniel richmond, a law

professor who served as the chief appellate attorney in the united states attorney's office for the southern district of new york stating, and i quote: as a matter of law, ms. lerner did not waive privilege and would not have been found to have done so by a competent federal court. end of quote. i ask that that document be entered into the record. >> without objection. all inclusions on your list will be entered into the record. >> thank you very much, mr. chairman. exhibit e is a letter i sent request requesting a hearing with legal experts on both sides so members could consider this issue in a reasoned, informed and responsible way. i ask that document be in the record, and i understand it will be. so with all this information now before the committee, what is on the other side? the chairman has a memorandum from house counsel on this issue that he has let all of the committee members see. his position ftly is that only he and i can review the memo so

that the memo is not in the record before us. in my letter to the chairman on wednesday -- >> would the gentleman -- whether yes. >> would the gentleman, please, yield for -- >> sure, of course. >> the instruction was that it cannot be released publicly since house counsel represents us. you're certainly free to have each individual member as hong as they're bound by the -- as long as they're bound by the same understanding. our counsel is subject to attorney/client privilege, and that's the reason that counsel's advice -- and you received separate counsel add voice directly from house counsel as i understand -- is, that's a decision that you make relative to the normal rules of attorney/client privilege. >> well, i thank you. reclaiming my time, i have a, i tried to be, pay appropriate deference to the chairman and through staff memo, this is a memo, mr. chairman, dated june

26, 2013, 8:07 p.m. -- >> yeah. and i'm reading it, and i will take such time as necessary. i'd also ask that you not distribute it widely, parentheses, like to all members. the fact is, the fact is it says next it says it is reasonably foreseen that a wide distribution could lead to public disclosure. the staff member that gave you this gave you this without a prohibition on any one of your members reading it. the concept would be that members could read it, they could seek independent counsel. every member on both sides of the dais can go to house counsel and seek an independent decision on their own. we simply were recognizing we did not want public kiss chose your -- disclosure as you and i would not want public disclosure of any attorney representing us.

>> i understand that. all i'm asking you is are you saying then -- because i have not divulged one syllable of this counsel's opinion to my members in accordance with what i thought you were saying. now, if you're saying that my members can have it and -- >> your members can seek counsel directly -- >> no, no, no, that's not what i'm asking you. >> your members can read it, and suzanne who was the recipient of that is well aware of that. we are dealing, you know, you and i may be rusty, but we both have good counsel. the fact is that every single member of the house can seek house counsel, and you did seek and receive a separate note from house counsel, and this only implies not to lead to public disclosure. >> all right, fine. >> nothing more. >> i just want to make sure that my staff -- i want for our members since -- i made a mistake, mr. chairman. apparently, i was under the

impression that you were saying that my members could not see it, see what they're going to be relying on counsel from counsel. and i'm asking that it be distributed to our members now. and it not be disclosed to the public. >> i would caution members if they want to see any further, they can, but this is attorney/client privilege. this is your attorney or your group of attorneys at house counsel. but their recommendations, their citings are available to any member. >> all right. now, so that we'll be clear, i just want to -- and, again, i'm trying to stay within the bounds that i thought were set. if the, if members want to ask, once they read it, ask about it, is that out of bounds? i'm just -- you follow what i'm saying? in other words, my members are now going to be reading what we are, what you depended upon --

>> this is a markup. the resolution is available for amendment. it was distributed pursuant to the rules. ms. norton, i know, has a stripping amendment. the fact is that we have had 37 days, plenty of public and private debate. we have sought counsel. i've chosen to use a resolution, mr. cummings, even though i had the right to rule. and had i been comfortable ruling without seeking additional advice from parliamentarian and also the house counsel, i would have. but this resolution is effectively a ruling of the chair that ms. lois lerner waived -- >> very well. >> -- in her activity, and we're really voting on a ruling of the chair. but it's in the form of a resolution so that it's available for amendment. and i would caution members they're free to use their five minutes and so on. i'm not going to limit debate. but this is a markup. it is like any other markup, and i've chosen to do that so that

my ruling would be published and open to a vote rather than simply the procedural tabling of the chair that otherwise would happen. >> mr. chairman, i'm almost finished now. thank you very much. in my letter to the chairman on wednesday, i asked that every member be given the opportunity to hear directly from house counsel and pose any questions they have about the legal standards and historical precedents he believes are controlling, but the chairman declined to horn my request -- to honor my request. so here's what may happen if we continue down in this path. the republicans could adopt a resolution on a partisan vote. the chairman could force ms. lerner to return and direct her to answer questions. her attorney, no doubt, will disagree with the legal basis for the resolution, and ms. lerner will continue to assert the fifth, after which the chairman could schedule a vote to hold her in contempt and send the entire matter to a federal court. after all of that happens, however, the record before the court will be the record we establish today. the committee has held no

hearings on this significant constitutional issue. the committee has taken no testimony from any legal experts. the chairman never responded to the legal precedence -- precedents from ms. lerner's counsel to testify before the committee and answer members' questions. the chairman declined my request for a meeting to allow members to hear directly from counsel. the chairman chose not to allow all committee members to review the opinion, and that's just been changed, thank you, mr. chairman. and the committee adopted no report or other analysis of the applicable legal opinions in the historical precedents. let me close by making clear that i want to hear ms. lerner's testimony. i think her testimony very, very -- is very, very important. i agree that she has information that is relevant to the committee's investigation. for example, i want to ask why did she not inform congress in 2012 of the improper practices she discovered in 2011? but we must respect the

constitutional rights of every witness who comes before this committee. and whatever your interpretation of the law is in this instance, we should all agree that this is not a responsible record to put forward because it upside mines the credibility -- undermines the credibility of this committee and the legitimacy of the resolution itself. so my request stands. i ask that the committee first take the preliminary, common sense step of holding a hearing to obtain testimony from legal experts before requiring committee members to vote on this very significant constitutional question. otherwise as a member of the congress who has sworn to uphold the constitution, i cannot in good conscience support this resolution, and with that i yield back. >> if the gentleman would yield -- >> of course. >> you have a number of questions there. no, i will not hold a hearing. no, i do not agree with your position that you were denied any, any access to counsel. the opinion that was shared with you out of courtesy was an

opinion we sought which means that we gave you more than would ordinarily happen -- >> when you say "we," i just want to make sure i understand what you're saying. >> the house counsel information that was shared with you, we requested and we shared what we got back with you. >> who is "we"? that's all i'm asking. >> the majority. >> okay. >> having said that, i find it, i find it odd that you would decide that we need to make a record before the court. if this were to go to a federal judge, the federal judge would be considering only ms. lerner's actual activity and would be picking a decision clearly de novo. having said that, i cannot nor would any chairman of either party hold hearings every time there is misbehavior or improper

conduct of a witness. >> yeah. >> whether you can understand that the committee cannot be turned into every member -- everyone coming and doing that. >> mr. chairman -- >> ms. lerner was here pursuant to a deposition, sorry, pursuant to a subpoena and was represented by counsel. >> mr. chairman, just one moment. mr. chairman, i'm not trying to make this more difficult than it should be. it's just that i think that when we are dealing with -- i'm or very sensitive to this, this constitution. because i wouldn't be here if it wasn't for it. and i just when we're dealing with people's rights, i think that we need to make sure that at least -- the only thing that i was asking, and i know that you've denied it now, and that's all well and good. the only thing i was asking was that we make sure that the members when they vote, they have access to the legal sides

of this argument. there are clearly two sides. and, but the chairman is the chairman, and so i yield back. >> many i thank the gentleman. all members -- i'll hold the record open until the end of the day for any member who'd like to submit a written statement. does any member wish to speak on the bill or offer an amendment? >> mr. chairman? >> the gentleman from florida. >> again, from the perspective of being your senior member of the panel, never seen an instance in which a witness would thwart our responsibility in such an offensive manner, i'm saddened that ranking member would, would not work with us on moving forward. he said some things that are

correct. he said some things that are dramatically wrong. first of all, if you hold up the constitution, just open it up, and it has three distinct branches of government. in fact, a legislative branch, an executive branch and a judicial branch. the rights are contained at the end in the bill of rights, and we want to comply with those. but, in fact, the right of this committee and the congress to conduct itself business as set forth by the constitution being, attempted to be thwarted by a government employee. our job, we were sent here to review the conduct. it's clear in the constitution, our responsibility in this committee is very important to conduct oversight and

investigations. we are the chief panel in the house of representatives. lois lerner is a federal employee who failed to appear at our request. under the rules of the house and this committee, she was issued a subpoena. >> she appeared. she was given the opportunity to exert her fifth amendment. she, in fact, waived that right by giving her testimony and her position, thumbing her nose at this rightful committee under the constitution and our legislative authority. lois lerner is, in fact, a poster child for thumbing her nose, a federal bureaucrat thumbing her nose at congress. and i'm telling you i've absolutely had it with what we've seen, the power of this

new estate. it's not in the constitution that there is a fourth branch that can tell us to go to hell. we have a responsibility to investigate what was going on. she's given her rights. and what the ranking member said at the end is correct. we will follow the process. the decision here today is this committee to act on the resolution and, in fact, this, this individual has thwarted the responsibility of this committee to investigate for her to testify. now, she'll be given the opportunity when she comes back to take the fifth, but, in fact, we are voting today on the fact that she waived it. that's a committee decision, we have the right to make that, we should back our chairman and the committee. ..

the financial on the irs of the united states thing out of control as we have seen in this instance with the bureaucrats thumbing her nose at us and our process, something dramatically wrong so i urge the adoption of this resolution. she will have her day to come back and her right to exercise her fifth amendment right and the ranking member is correct. she may be held in contempt in the future. but again, this is in fact a showdown today between an

emerging bureaucracy that has spun out of control and if you don't see it, folks, you are in trouble when the system is in trouble. high-yield back. >> at the appropriate time, i have an amendment and substitute. >> the clerk will designate the amendment. >> amendment in the nature of the substitute the resolution of the committee on oversight and government reform offered by miss norton of the district of columbia. >> the member will consider as red and distributed, the gentlelady is recognized. >> this committee is fond of citing the constitution. i offer this resolution in order to allow it to show and mean it. i agree with the chairman that a hearing here would be unusual and when there is reported misconduct we don't have a hearing every time but it is also clear this is a novel issue

and a close question. all one has to do is look at the authorities and see how they line up on both sides of when a witness waves her constitutional rights. both sides are anxious to question lois lerner because she may be in -- she may be the witness in the only position to get to the root of where the origin of the controversy encouraging the irs was. the justice department has itself opened an investigation, ms. lerner took the fifth amendment and issued a short

statement proclaiming her innocence. i have looked at the authorities, the reason i offered this amendment and the nature of this substitute is also i have spent most of my professional life when i was not a public official either as a practicing lawyer or as a law professor, tenured professor of law as i am still today, i have no immediate opinion pro or con, and still do not. i only have a few minutes on my own to scan the authorities. i decided to write this resolution last night only upon learning that there would be a vote on this amendment and i would have the votes that the american citizen had waved a constitutional right. that is a very heavy burden.

i learned there have been correspondents from the ranking member, that there had been an expert opinion from house counsel, that counsel was regarded as an attorney-client matter, and ms. lerner's council had written to the committee to offer his but authorities that she did not waive her constitutional rights. clearly wherever you come down on this issue there are decidedly different precedents on when an american citizen waived her constitutional rights including her fifth amendment rights. i do not see any basis for the

committee to conclude that for a question of waiver is clear and settled on the information before us now. my resolution might well yields no different results for what the chairman seeks through his resolution but it calls for hearings that at the very least would educate members sufficiently to make them feel comfortable in actually voting that an american citizen had waived a precious constitutional right. the fifth amendment has become perhaps the most unpopular amendment of all the amendments in the bill of rights but it was one of the favorites of the framers. no court would strictly construed a waiver of any

constitutional right without more information than we have before us now. we are not a court. the committee took seriously, even revered the constitution. the fifth amendment has a long and storied history in this congress. much of it among the most discredited in the history of this body. the point of calling lois lerner was to discover what no other witness can tell us. it is still our purpose -- >> the gentlelady please wrap up. >> i hoped we could find a way to get to the real point of hearing from her perhaps offering her immunity, some kind of negotiations with her counsel

and that is what we all want. waving, voting to waive her constitutional rights must be the very last resort. all respect, mr. chairman, i do not believe we are at that point. >> will the gentlelady yield? i am going to be not supporting your amendment but what i wanted to make clear was all the things you said including trying to get her to give testimony, the possibility of limited immunity and so on, all of that by definition comes after mr. gowdy's assertion that she had waived. i you were here for it, we are dealing with a motion that originated from mr. gowdy that she had waived, a decision that i reserve for 37 days. >> i use saying that since she waved, we don't need to discuss whether perhaps she would

testify if given immunity? >> no. the decision whether she waved and the decision of whether or not they would proffer and all the other decisions quite frankly i not going to happen until after we conclude her testimony which she began, continued, and then stopped earlier. she is a witness pending from a recess hearing and that is what we doing, preparing to go forward with a hearing. >> have you considered offering her immunity, may i ask? have you considered offering her immunity so we may discover the very evidence we seek from her? >> i apologize but there are some things that cannot be said in an open hearing. >> yet we are supposed to waive her constitutional, she waved her constitutional rights? that is a very serious burden to put on us without more information. >> i appreciate, but we were all here, eligible to be here, we

have noticed this markup pursuant to committee rules, the gentlelady had 37 days in which to see kelso. >> thirty-second days you noticed this hearing? >> 87 days to seek counsel last question of the statement made. >> the hearing, mr. chairman. >> the gentlelady's time is expired. i will recognize the gentleman from south carolina. >> the prospect of having another hearing almost seems irresistible except for the fact that that additional hearing would not disclose one single solitary relevant fact. all facts necessary or that would be at the disposal of this committee are already in the record. miss lerner is coming back and i don't need law professors to call for a second hearing and read me the case law. there will not be one additional fact. uncovered at a second hearing. so what facts do we have at our

disposal? i have identified nine separate, specific assertions made by lois lerner on may 22nd and that was after she asserted her right against privilege. nine separate factual assertions including, mr. chairman, i have done nothing wrong, i have broken no laws, i have provided no false information to congress the law violated no irs rules, i have violated no irs regulations, and then she authenticated documents, all of this, mr. chairman, after she invoked her right to remain silent. nine separate fact assertions, and the authenticating of a document after, with the advice of counsel i hasten to add, with the advice of counsel sitting right behind her, she testified to nine separate factual assertions and then authenticated as document.

mr. chairman, the case law to me is clear, that is not the way the fifth amendment works. you don't get to tell your side of the story and then avoid the very process that we have in this system for in visiting the truth which is cross-examination. why do we have a confrontation clause? to my colleagues on the other side of the aisle why do we have a confrontation clause? cross-examination is the best technique, the best tactic for even sitting the truth. and every witness has to sit on the stand and they have to weigh and balance. one of the benefits of saying nothing which is my right, one of the benefits of getting my side of the story out, that is what you have to balance. say nothing versus telling your side of the story. but mr. chairman, there is no contemplation in the constitution that you tell your side of the story and you are never cross-examined and the supreme court agrees with us.

mr. chairman, these are two from the supreme court, a witness may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. similarly in brown vs. united states witnessed waived the privilege by voluntarily giving exculpatory testimony, denial of activities that might provide a basis for prosecution constitutes a waiver of that privilege. yes, she has a fifth amendment right to remain silent. she sat there and could have said nothing. we had a witness this week who did that. we had a witness this week who said nothing. she didn't. sheet made nine separate factual assertions and then she authenticated a document. if that is not waiver, if that is not express waiver, then it is implied waiver and if it is not implied wavered and what is?

giving your side of it nine separate facts, mr. chairman, i have to add this. aside from certain factual assertions this witness volunteered, this is important, she testified that she has done, quote, nothing wrong. i know my friends on the other side of the aisle will conclude that is an amazingly broad statement. it is tantamount to a double negative. i have done nothing wrong. let's flip it around. what she is really saying is i have done everything right. to say i have done nothing wrong is to really say i have done everything right. so mr. chairman, what possibly could be a broader assertion or fact than to say i have done

everything right? i want to say this in conclusion because my time is almost a. i had private conversations with colleagues on this side of the aisle whose opinion i respect very much and i am not going to disclose those private conversations other to say i benefit from their counsel, very good attorneys on the other side of the aisle as there are on this side of the aisle. the way i view this is this is congress asserting its constitutional obligation to provide oversight. yes, she has a constitutional right to remain silent and she could have invoked it but she did not, and we have a constitutional obligation to provide oversight. so we could have another hearing. i have great respect for the gentlelady from the district of columbia but let's be honest with each other. there's not going to be one more fact that is part of this record, not one. we will bring a ball professor to say she waved, you will bring up professor to say she did not and we will be right back where we are today. all the facts that we are going

to have are here right now. nine separate factual assertions. if that is invoking your right to remain silent, then there is no such thing as waiver, no such thing. >> gentleman yields back. for what purpose does the gentleman for virginia rise? >> i wish to speak to the resolution. >> the gentleman is recognized for five minutes. >> a matter of clarification. with the gentleman be speaking to the amendment for the resolution at this point? >> the gentleman is recognized to speak to the amendment and nature by the gentlelady from the district of columbia in regular order. >> could i ask my time be restored? >> no, he took it. >> thank you, mr. chairman. i wish to support the amendment offered by the gentlelady from the district of columbia because i think actually there are more facts to be heard and there are

other points of view to be heard. what we are about today is not to prosecute lois lerner. our colleagues from south carolina seems to be doing. it is to ensure the protection of the constitutional rights of a citizen. mr mica from florida referred to her as the federal bureaucrats thumbing her nose at congress and that is what this is about. that is not what this is about. this is first and foremost lois lerner, an american citizen invoking one of the most sacred privileges in the bill of rights, her fifth amendment right to protect herself. the record will show from the very beginning when she was summoned to this committee she resisted and she invoked her fifth amendment right. she came here under subpoena, a partisan issue subpoena not

supported by our side. against her will. and she made a statement and then refuse to answer any questions and was dismissed by the chairman properly so. mr. gowdy would have you believe the law says the fact she made any statement at all constitutes a waiver of her constitutional right, not to self incriminate. i beg to differ. case law is very clear, the fact that she made a statement does not somehow constitutes a waiver. there is a famous case during a different era, united states versus hope in which mr. hope said -- made a statement. i have never engaged in espionage or sabotage, i am not so engage, i will also engage in the future, i am not a spy or saboteur and then invoke his fifth amendment and the court found that did not constitute a waiver.

just like this case. the famous quintin case in which the supreme court was crystal clear that it is a high standard you have to meet before you can determine someone has waived their fifth amendment. i think the record is quite clear, lois lerner intended absolutely from the beginning to win voter fifth amendment and protect herself as an american citizen is entitled to do. even though we would like to hear her testimony, i would too. if we do this today, every american citizen is at risk who is ever summoned before this committee and it could be construed, though i am sure that is not the intent, that by insisting she appear here under subpoena and having her at that witness table, she could claim, one observer could say it constituted entrapment.

i am sure that is not what our intent was, but i will point out that the d.c. bar ethics code says explicitly that when someone has invoked the fifth amendment it is wrong to hold them before a committee and the word they use is the only purpose to be served by doing that is to pillory them. that is the verb. which invoke images of different mirrors in american history that the fifth amendment was designed to prevent from recurring, like the salem witch trials, where people were pilloried and worse. i believe if we pass this resolution, we are traveling on the rights of an american citizen and that trumps everything. that trumps the need for her testimony, that trump's her status as a federal employee, that trump's her status as an official of the irs.

if we are not above protecting the rights of american citizens what we're about as members of congress? i urge my colleagues to put aside politics here. i urge my colleagues especially on the other side to think carefully about what we are about to do. you may make a small political gain by passing this resolution, an enormous long-term costs, you will erode the confidence of the american people in what we are about and there's any institutional commitment all of us need to be concerned about. i plead with my colleagues to think carefully. why not take some time and have a hearing so we can air this out. i yield back. >> we now recognize the gentleman from tennessee. >> thank you, i rise to speak in opposition to the amendment and the nature of the substitute. >> the gentleman is recognized.

>> i think the actions of the chairman bringing forth this resolution are entirely appropriate and i understand they are being done after the advice of house counsel and i wish to second remarks by my colleague, i spent years as a lawyer and judge in congress and spent the last seven years as the judge trying criminal cases. every article i ever read, every case i ever read about the fifth amendment would not have allowed, as a lawyer i never would have advised a client that they could give a statement under oath and then plead the fifth. as a judge i never would have allowed the defendant in that court to testify and make a statement and emphatically declared their innocence and

then plead the fifth at that point. that would make a mockery out of the fifth amendment and it is accurate to say the record will show that i was a judge who leaned very much in favor of defendants. i was never prosecutor and i did everything possible as a judge to bend over backwards to make sure all defendants appearing in my court got every right that they were entitled to. but lois lerner came in here and as mr. gowdy said on nine separate occasions emphatically declared her innocence, strongly asserted she had done nothing wrong repeatedly. we cannot allow witnesses to testify under oath and then plead the fifth to keep from being questioned or cross-examined. this would not be fair.

it is not consistent with the history of our country and our judicial system. i think a key element here is this committee is operating under somewhat different from other committees, most other committees in congress do not swear witnesses and place them under oath before they testify but lois lerner came here under oath and essentially told her side of the case and then fled the fifth, denying myself, mr. gowdy and other members and the opportunity to question her, to cross-examine her and i rise in opposition or speak in opposition to the amendment and the nature of the substitute and i believe the actions of the chairman in bringing forth this underlying resolution are entirely appropriate and consistent with all the legal precedents in history in this country.

thank you. >> would the gentleman yield? >> yes. >> i thank the gentleman. short moment to respond to my good friend from virginia who spoke so eloquently about the sanctity of the fifth amendment. i think it is important and it is important that somebody be represented by counsel and miss lerner was but more important to realize most important to realize that she made voluntary decisions, not just decision to make an opening statement that made claims and assertions on point but then to answer additional questions after she invoked her fifth amendment privilege, to answer additional questions. i am not an attorney even though i serve on judiciary and obviously have this obligation here today. that is why we sought counsel and took the time. it is the result of recognizing that there is both a legal precedent for this and many

people have not seen legal precedent for taken time for it over the last 37 days but the important thing is the respect for the constitution is also respect for the fact that if somebody comes and gives testimony they become subject to cross-examination. the decision here today is did she give testimony and then choose to take the fifth and is she subject to that cross-examination? i know everybody here in this room if they were accused of a crime or even just being sued, if they would want a right to cross-examination, rights to the allegations made by people. she made allegations and we the people would like to simply cross-examine what she said having been informed and in my opinion waving her right. i thank the gentleman for yielding and yield back. >> for what purpose does the

gentleman seek recognition? >> address the amendment >> recognized for five minutes. >> i think this is an incredibly serious question put to this committee. all of us on both sides of the aisle want to hear what mr. lerner has to say and we want to do our job and get on with the investigation that underlies all of this but we all hopefully are just as concerned about making sure this committee uphold the constitution, particular fifth amendment rights on every citizen a matter what we think of the citizen's earlier activities or statement. i am concerned about the unusual proceeding that she was subpoenaed, current journey made it very clear she was going to plead the fifth and yet we continue to force her to come before the committee. what for? to pillory her? to make an example of her? to put her in a situation where she might then be forced to

waive? in the judicial process, that is not the usual way of proceeding. in this d.c. bar it would be considered questionable ethical practice to put somebody in that kind of untenable situation. i am concerned from the outset what that was all about, if it was about trying to move this matter forward on that. i am also concerned we are dealing with an issue of law here. as my colleague indicates you are asking this group of mostly non lawyers, not necessarily constitutional lawyers to make a decision based on complicated legal questions, some might wish it were. there are days in the interim, the chairman was going to move in this direction to seek out some advice, on both sides. i think responsible and credible lawyers and constitutional experts on either side of the issue and it deserves a full exposition here as this

amendment would do having experts come in to brief us and testify as to what underlies their opinions on it? the former house counsel stated miss lerner's prevented the tree statement not given in response to any question was simply a profession of her innocence, regarding the substance of the committee's in corey. it contains no factual representations relating to the subject matter of the hearing and generally denied wrongdoing and he would not recommend she be brought in for contempt or found that she waived her rights. another legal expert from the columbia law school, prof. daniel richmond makes clear miss lerner's willingness in response to the chairman's request that she authenticate her statements, driver fifth amendment privilege did not happen. the court noted a witness makes an admission in an affidavit submitted in proceedings she may lose your ability to invoke

privilege when asked about substance of that admission later in the proceeding but willingness to authenticate admit price statements made without concession of their veracity is not testimony with substance of prior statements and siding for that. so there is conflicting information on that and although the chairman now indicates members were supposedly allowed to see his request for house counsel opinion i am looking at the e-mail back and forth which says i asked that you not distribute widely promises to all your members. my question would be to which one of the members over here, mr. cummings's minority, would you like not to see this, would you like not to be fully briefed and informed before making this decision, which one of the members have different status than members on your side? we apparently were willing to share this in advance. i think that is entirely unreasonable and unfair and should not have happened and that kind of statement is offensive to people who might be included in that category. we have not had ample time to

have an exposition of all the facts. we have been deprived because how was mr. cummings to determine to all your members would apply on fat? i see some eyes rolling but the fact is -- >> will the gentleman yield? >> i will and a second. i want to make this point clearly. the ramifications, also asked you not distribute it is widely liked to all your members. i will yield of the gentleman wants to tell us which of these members did not want to see that report. >> gentleman yields. >> i yield for that purpose. >> the chairman should not have to answer that question. >> i am sorry that you offended that we offered any sharing -- >> if you are not going to answer when i yield the -- >> i am trying to answer your question. you are saying you were offended. this was an opinion given to the majority on my request. this was the chairman's request the >> house counsel gives an opinion to members of the house.

>> that is not correct. >> which members did you not want to see that report? >> the gentleman's time is expired. >> excuse is wayne too. >> we now go to the gentleman from pennsylvania. >> thank you, mr. chairman. as i sit through this i think we're losing a little focus about what the purpose of our inquiry is in the first place. i have great respect for the gentleman of virginia and great regard for the gentlelady from washington, from the district who has looked at this from the perspective of both sides of the equations, we are doing a great deal of talk about the characterization of lois lerner and the ideas that somehow we are attempting to embarrass the witness. i go back to the point we are not here with regard to lois lerner. we are here because there are

american citizens who were affected by the agencies that she oversaw who used their authority and the irs to what we believe to be an aggressive fashion against what could be their constitutional rights and potentially in a criminal fashion. what we really have here is, we are engaged in a civil proceeding. the extent to which lois lerner has rights that she can invoke using her fifth amendment, to any ultimate question that she may be accountable for any criminal forum, what she says here may be relevant and certainly there is plenty of history with regard to that issue but let's go through the facts of what happened. we are here in a civil proceeding and we do have a responsibility and oversight responsibility to address precisely that which we just

articulated which is responsibility to ensure the rights of citizens have not been oppressed by the irs. lois lerner does not have any right to refuse to answer questions before this committee unless they would in fact incriminate her. she may in fact, it is not uncommon in civil practice of law for a person to come in and to be depots under normal course of questioning go through, she has competent counsel. there will be a series of questions and they will be answered and at some point council will take a particular question and say that goes to the potential that it might be a meaningful basis that it could incriminate her criminally and there is of broad reading of that. i suspect lois lerner comes back here she will invoke the fifth amendment with respect to quite a few, if not everything but the fact of the matter is what changed the dynamic here was with competent counsel sitting at the table, some of the best

attorneys available and lois lerner is an attorney herself who practiced in the department of justice so she comes here with a higher degree of awareness of what she was doing. she voluntarily changed the dynamic. when she chose to use this forum, a forum in which she was quite aware there was going to be national forum for her to declare whatever it is she wanted to do and sheet used this occasion very specifically and the gentleman from south carolina winter and articulated very eloquently the number of ways in which she opened the door. i have in my hands here the letter from counsel, we knew what she was doing by invoking of the fifth. species had to do was sit there and say i invoke the fifth. end of case. we wouldn't be here today. but she is the one that put into this record the subject matter, she opened a the door to the

subject matter. she is the one that included the references to the i t report which talked about inappropriate activity on the part of the irs and talking about specifically potential political activity that was inappropriate. she is the one, she talked-about issues before prior testimony and made these statements, i did not break any laws, i did not violate any irs rules or regulations, i did not give any false testimony to this or any other congressional committee. with respect to all the things that had previously been identified. that is the subject matter in which she put it into place. that is a voluntary waiver. in determination on her part with counsel sitting right behind her. we are here today because lois lerner made a choice. she made a choice to use this

forum for her purposes and i ask this committee to remember why we are here, not for lois lerner but to make sure we stand up for the rights of those who have been oppressed by the irs. i complete my comments by saying lois lerner is not surrendering any fifth amendment rights because we can foresee what will happen down the line to the extent that she will invoke fifth amendment privilege and we will hold her in contempt. >> go before ultimately a qualified court of law and there it will be brief and there will be the best of attorneys if in fact it gets to that matter and prior to that there may be decisions for other kinds of activities this committee would make that would make that issue not relevant. after this moment lois lerner opened the door and she can't have it both ways and i believe that this point in time this is a simple resolution which is simply saying we have the ability to ask her to come back

and answer questions with regard to the issues she opened the door to end she may ultimately then invoke her fifth amendment and we will be back to the further proceeding but this is not something that violates her rights and i urge my colleagues to support this resolution. >> the question is on agreeing to the amendment offered by the gentlelady from the district of columbia. all those in favor will signify by saying "aye". all those opposed. in the opinion of the charity knows have it. the amendment is not agreed to. >> mr. chairman. >> are you asking for a roll-call vote? >> i asked to be recognized. >> five minutes. >> i did not recognize the gentleman. >> are you requesting a

roll-call vote? >> no. i am asking for five minutes to speak. >> you will have five minutes on the amendment. on the resolution. >> i am asking for a roll-call vote. >> you're very welcome. the clerk will call the roll. [roll call vote] [roll call vote] [roll call vote]

[roll call vote] [roll call vote] [roll call vote]

[roll call vote] >> mr. hastings, how do you vote? >> no. [roll call vote]] does anyone else seek recognition for the vote? the clerk will report. >> mr. chairman. 20 nos, 16 is. >> the amendment is not agreed to. since we have a vote on the floor, wanting to leave ample time on the underlying resolution we will stand in recess after we will do one more

on the underlying, we will stand in recess until five minutes after the last vote. [inaudible conversations] [inaudible conversations] [inaudible conversations]

[inaudible conversations] [inaudible conversations] [inaudible conversations] >> the house oversight committee meeting this morning to determine whether irs official lois lerner waived her right to invoke her fifth amendment right to remain silent during an appearance last month before the

committee. the question arises that she invoked the right after giving an opening statement in which she proclaimed her innocence relative to the questionable practices of the irs specifically targeting of certain conservative groups for investigation. since that time lois lerner has been placed on administrative leave with the agency. she is still employed there though. the employers have been debating amendments and voting on them and they're taking a break now to head over to the house chamber for seven folks on offshore oil drilling legislation. so as this hearing is taking a break while this break is under way we will go back to may 27th when los lerner appeared before the house oversight government reform committee for testimony and here is part of what she had to say. >> good morning, mr. chairman and members of the committee. my name is lois lerner and are in the director of exempt organizations at the internal revenue service. i have been a government employee for over 34 years.

i initially practiced law at the department of justice and later at the federal elections commission. in 2001, i became -- i moved to the irs to work in the exempt organizations office. in 2006 i was promoted to be the director of that office. and exempt organizations overseas 1.6 million tax-exempt organizations and processes 60,000 applications for tax exemption every year. as director i am responsible for 900 employees nationwide and administer a budget of $100 million. the professional career has been devoted to fulfilling responsibilities of the agencies for which i have worked and i am very proud of the work i have done in government. on may 14th the treasury inspector general released a report finding the exempt organization field office in cincinnati, ohio use inappropriate criteria to

identify further review applications from organizations that plan to engage in political activity which may mean they did not qualify for tax exemption. on that same day the department of justice launched an investigation into the matters described in the inspector general's report. addition members of this committee have accused me of providing false information when i responded to questions about the irs processing of applications for tax exemption. i have not done anything wrong. i have not broken any laws, i have not violated any irs rules or regulations and i have not provided false information to this or any other congressional committee. while i would very much like to answer the committee's questions today i have been advised by my counsel to assert my constitutional right not to testify or answer questions related to the subject matter of this hearing.

after very careful consideration, i have decided to follow my counsel's advice and not testify or answer any of the questions today. because i am asserting my right not to testify i know some people will assume i have done something wrong. i have not. one of the basic functions of the fifth amendment is to protect innocent individuals and that is the protection i am invoking today, thank you. >> thank you for your testimony. miss lerner, earlier the ranking member made me aware of response we have that is purported to come from you in regards to questions that the ig asked during his investigation. can we have you authenticate simply the questions and answers previously given to the inspector general. >> i don't know what that is. i would have to look at it. >> would you please make it available to the witness?

>> this appears to be my response. >> it is your testimony that as far as your recollection that is

your response. >> that is your correct. >> miss lerner, the topic of this hearing is improper targeting of certain groups for additional scrutiny regarding their application for tax-exempt status. as director of exempt organizations of the tax-exempt and government entities division of the irs, you are uniquely positioned to provide testimony to help this committee better understand how and why the irs targeted these groups. to that end imus ask you to reconsider, particularly in light of the fact that you have given not once but twice testimony before this committee under oath this morning, you have made an opening statement in which you've made assertions of your innocence, assertions you did nothing wrong, assertions you broke no laws or rules. additional you have authenticated earlier answers to the ig. at this point i believe you have

not asserted your right but in fact effectively waived your right. would you please see counsel for further guidance on this matter while we wait? >> i will not answer any questions or testify about the subject matter of this committee's meeting. >> we will take your refusal as a refusal to testify. the witness and council are dismissed. >> the gentleman will please wait. >> mr. issa, mr. cummings said we should run this like a courtroom and i agree with him. he just testified to she just waved her fifth amendment right. you don't get to tell your side of the story and then not be subjected to cross-examination. that is not the way it works.

she waived her right to fifth amendment privilege by issuing an opening statement, she will stand here and answer our questions. [applause] >> mr. chairman. mr. chairman. >> mr. cummings. >> with all respect for my good friend mr. gowdy i said i would like to see it run like a federal court. but this is not a federal court. she does have the right, and we have to adhere to that. >> thank you. we will pause for a moment. >> miss lerner, i would just ask

you a couple additional questions. is it possible that we could narrow the scope of questions and that there are some areas that you will be able to answer any questions on here today? >> i will not answer any questions or testify today. >> miss lerner, would you be willing to answer questions specifically related to the earlier statements made under oath before this committee? >> i declined to answer that question for the reasons i have already given. >> for this reason i have no choice but to excuse the witness subject to recall after we seek specific council on the question of whether or not the constitutional right of the fifth amendment has been properly waived. not withstanding that in consultation with the department of justice as to whether or not limited or use of immunity could be negotiated. the witness and council are

dismissed. the clerk will please rearrange the seating. [inaudible conversations] >> that testimony took place may 22nd of this year. she has since been placed on administrative leave but still with the agency did you conceive her entire appearance of that testimony on our web site, go to c-span.org. again the house oversight committee meeting this morning to determine whether irs official lois lerner waived her right to invoke fifth amendment right to remain silent during that appearance last month before the committee. the committee is taking a break now. members heading to the house chamber, seven votes happening right now on onshore oil drilling legislation.

you can see that on our companion network c-span. you have been weighing in with your tweets to c-span chaff, general 50s star says eliza cummings is looking to obfuscate from the people. is there one in congress for the people? kathleen says joe mccarthy issa need to go, he and the gop needs to be investigated. clown show, fire the gop, also give her immunity so the public can hear the truth. tweet your thoughts, your comments and c-span chad. the committees and a break for votes, show you a portion of the oversight committee again from this morning. [inaudible conversations]

[inaudible conversations] >> the committee on oversight and government reform will come to order. the committee meets today to consider a resolution to determine whether lois lerner waved her fifth amendment privilege against self-incrimination when she made a voluntary opening statement during the committee's hearing that began on may 22nd, 2013. the clerk will designate the resolution. >> resolution of the committee on oversight and government reform. >> without objection the resolution will be considered as read and open for amendment at any point. the text has been distributed as in your folders. i now recognize myself for an opening statement. we are here today to resolve an

important issue of the committee and the united states house of representatives. did lois lerner waive her fifth amendment privilege against self-incrimination during the committee hearing that began may 22nd, 2013? during the hearing that began on may 22nd within five weeks ago i tried to to be exceedingly cautious. i did not make a quick war and informed decision on the waiver. because the decision is one that does not often get made and it is extremely important both to the discovery of congress in its duties and quite candidly toward the real question of whether or not people who come and give one side of a story and not allow themselves to be cross-examined, as chairman is my obligation to

be fair and impartial and lead this committee not on one side or the other but to the greatest extent possible to make my decisions in concert with the parliamentarian, with house counsel, and consistent with what we would want to have if and when the gavel moves to the other side of the aisle. my job as chairman is to bring the question to a vote so the committee could make a determination. as most know, when congressman gowdy made his assertion during the hearing i could have ruled just that, that she had waived. i felt it inappropriate to do it, recessed the committee hearings and informed mr. lerner that she was subject to recall after a decision was made. we have consulted and gotten

advice with house counsel, their capacity as attorneys for the committee and the congress is impartial. they have delivered to us both their opinion and the case law. having now considered the facts and arguments, i believe lois lerner waved her fifth amendment privileges. she did so when she chose to make a voluntary opening statement. miss at the 11's opening statement -- miss lerner's opening statement records the treasury report and the department of justice investigation and the assertion she previously had provided -- and the assertions she had previously provided false information to the committee. she made four specific denials, those denials are at the core of the committee's investigation in this matter.

she stated that she had not done anything wrong, not broken any laws, not violated any irs rules or regulations, and not provided false information to this or any other congressional committee regarding areas about which committee members would have liked to ask her questions. in viet committee members are still interested in hearing from her. her statement covers almost the entire range of questions we wanted to ask when the hearing began on may 22nd. today marks the 37th day since this lerner appeared. i have considered the matter deliberately. i received letters from lerner's lawyers that presented her arguments clearly and completely. her a letter will now be entered into the record without objection, so ordered.

we considered and sought appropriate council to reach our decision. council had her attorney's letters and made their determination and recommendation and now it is time to put into a vote. with that recognize the ranking member for his opening statement. >> thank you, mr. chairman. to date, this investigation has been characterized by a series of unsubstantiated accusations by members of congress with no evidence to support their claims. the way this unfortunate example, i often say i would like our committee to operate more like a courtroom by gathering evidence in responsible and impartial way. before drawing conclusions or making judgments. if this were a court room the

first question to miss at 11 would have been how do you plead? this lerner would have been able to state her innocence and never would have been forced to take the stand, swear an oath or publicly assert her fifth amendment rights. ..

the judge likely would hold a hearing on this question before making a ruling. council would prepare written briefs with legal and historical precedence and the judge would hear oral arguments from all parties involved before making a determination based on the facts and based on the law. but again this is not happening and the chairman is going about this in reverse. he is asking the committee to vote on this resolution 1, without taking basic commonsense measures to help committee members, all committee members both republicans and democrats make reasoned and informed decisions. let's look at the is the -- evidence now before the committee. exhibit a is the letter from ms. lerner's legal counsel on

2013 clearly invoking her fifth amendment rights. i asked that this be entered into the record. >> without objection so ordered. >> exhibit b is a detailed letter from ms. lerner's counsel citing extensive legal precedent by the legal court, circuit courts and district courts explained that and i quote a witness compelled to appear and did not wait for fifth amendment by giving testimony proclaiming her innocence end quote. the chairman never responded to this letter to my knowledge or legal precedence and i asked that this letter be entered into the record. >> it's already in the record. >> exhibit c is a statement from stan brand who served as house counsel from 1976 to 1983 stating and i quote, do not believe ms. lerner's brief profession of innocents in which he offered no substantive testimony or evidence

constitutes a waiver of her fifth amendment rights. i ask that document be entered into the record. >> without objection. >> thank you mr. chairman. exhibit d is a statement from daniel richmond a law professor who served as the chief appellate attorney in the united states attorney's office for the seventh district of new york stating and i quote, as a matter of law ms. lerner did not wait for privilege and would not be found to have done so by a federal court. end of quote. i asked that document be entered into the record. >> without objection. all inclusions on your list will be entered. >> thank you very much mr. chairman. exhibit b is a letter that i sent to the chairman citing additional authorities and requesting a hearing with legal experts on both sides to members could consider it in a reasonable way.

with all this information before the committee what is on the other side? the chairman as a memorandum from house counsel on this issue that he is declined to let all of the members of the committee seat. his position evidently is that only he and i can review memos so that the memo is not in the record before us. in my letter to the chairman on wednesday -- >> with the gentleman -- with the gentleman please yield for a minute? the instruction was that it cannot be cannot be released publicly since house counsel represents us. you are certainly free to have each individual members long as they are bound by the same understanding. our counsel is subject to attorney-client privilege and that is the reason counsel's advice and you received separate counsel advice directly from house counsel as i understand, that is a decision that you make relative to the normal rules of attorney-client privilege. >> reclaiming my time. i have tried to pay appropriate

deference to the chairman and this is a memo mr. chairman dated june 26, 2013 at 8:07. >> and i'm reading it and i will take such time as necessary. i would also ask that you not distributed widely parentheses like to all members. the fact is, the fact is it says next ,-com,-com ma it is reasonably foreseen that a wide distribution could lead to public disclosure. the staff member that gave you this gave you this without a prohibition on any one of your members reading it. the concept would be that members could read it and they could seek independent counsel,

every member on both sides of the dies could seek an independent decision on their own. we simply were recognizing we did not want public disclosure. as you and i would not want public disclosure of any attorney representing us. >> i understand that but are you saying because i have not divulged one syllable of this council's opinion to my members in accordance with what i thought you were saying. you are saying that my members can have it -- >> your members can seek counsel directly. >> no, no, no that is not what i'm asking. >> susanna was the recipient of that is well aware of that. you and i may be rusty but we have oath have good counsel. the fact is that every single member of the house can seek house counsel and you did seek and receive a separate note from

house counsel and this only implies not to lead to public disclosure. >> i just want to make sure. i want now for our members, since i made a mistake mr. chairman. apparently i was under the impression you said my members could not see it and see what they are going to be relying on from counsel and i'm asking it be distributed to our members now. and it not be disclosed to the public. >> i would caution members if they want to see any further they can but this is attorney-client or pledge. this is your attorney for your group of attorneys for house counsel but their recommendations, the air sightings are available to any member. >> i said it will be clear. i just want to again i'm trying to stay within the bounds that i thought what was said. if members want to ask, once

they read it, ask about it is that out of bounds? do you follow what i'm saying? in other words, my members are now going to be reading what you depended upon. >> this is a markup here the resolution is available for amendment and distributed pursuant to the rules. ms. north has a stripping amendment. the fact is that we have had 37 days, plenty of public and private debate. we have sought counsel. i have chosen to use a resolution mr. cummings even though i have the right to rule and had i been comfortable ruling without seeking additional advice from parliamentarian and also the house counsel, i would have but this resolution is effectively a ruling of the chair that this -- ms. lois lerner waves in her activity and we are really voting on a ruling of the chair but it's in the form of a

resolution so it's available for amendment. i would caution members i'm not going to limit debate but this is a markup. it is like any other markup and i have chosen to do that so that my ruling would he published or open to a vote rather than simply the procedural tabling of the chair which otherwise would have happened. >> mr. chair i'm almost finished. thank you very much. >> and my letter to the chairman i is for every member have the opportunity to hear and pose any questions they have about the legal standards and historical precedence he believes are controlling but the chairman declined my request so here is what may happen as we continue down this path. if republicans could adopt the resolution on a partisan vote the chairman could force ms. lerner to return and director to answer questions. the attorney no doubt would disagree with the legal basis for the resolution and ms. lerner will continue to

assert the fifth after which the chairman scheduled a vote can hold her in contempt and send the entire matter to federal court. after all of that happens and the record that we established today the committee passed out no hearings on this issue. the committee has taken no testimony from any legal experts through the chairman never responded to legal precedence in this council. the chairman never responded to a request to testify before the committee. the chairman declined my request for a meeting to allow members to hear direct from counsel. the chairman chose not to allow members to review the opinion that is just been changed. thank you mr. chairman and the committee adopted no report or analysis of the applicable legal provisions in the historical precedence. let me close by making clear i want to hear ms. lerner's testimony. i think her testimony is very very important. i agree that she has information

that is relevant to the committee's investigation. for example i want to ask why did she not inform congress in 2012 of the improper practices she discovered in 2011? but we must respect the constitutional rights of every witness who comes before this committee. and whatever your interpretation of the law is, we should all agree that this is not a responsible record to put forward because it undermines the credibility of this committee and the legitimacy of the resolution itself. so my request stands, i asked the committee first take the preliminaprelimina ry commonsense step of holding the hearing to obtain testimony from legal experts before requiring committee members to vote on this very significant constitutional question. otherwise as a member of congress who is sworn to uphold the constitution i cannot in good conscious support this resolution and with that i yield

back carried. >> would the gentleman yield? there were number of questions there. no, i will not hold a hearing. no, i do not agree with your position that you were denied any access to counsel. the opinion shared with you out of kerr city -- courtesy was opinion that we sought which needs we gave you more than would ordinarily happen. >> when you say we, i want to make sure i understand what you're saying. >> the house counsel information that was shared with you, we requested and we shared what we got back with you. >> who is weak? >> the majority. >> okay. >> the fact is you can seek counsel and every member can seek counsel. having said that, i find it, i find it odd that you would decide that we need to make a record before the court. if this were to go to a federal judge a federal judge would be considering only ms. lerner's

actual activity and would be making a decision clearly did no boat. having said that, i cannot nor would any chairman of either party hold hearings every time there is misbehavior or improper conduct of a witness. you can understand that the committee cannot be turned into everyone coming in doing that. >> mr. chairman? >> ms. lerner was here pursuant to a deposition, i'm sorry to at the scene and was represented by counsel. >> mr. chairman, just one moment. mr. chairman i'm not trying to make this more difficult than it should be. it's just that i think that when we are dealing with -- i'm very sensitive to this constitution because i wouldn't be here if it wasn't for it. and when we are dealing with rights, i think that we need to make sure --

the only thing that i was asking and i know you have denied it and that is all well and good. the only thing i was asking was that we make sure the members when they vote they have access to the legal sides of the argument and there are clearly two sides. but the chairman is the chairman and so i yield back. >> i thank the gentleman. i will hold the record open until the end of the day for any member who would like to submit a written statement. as any member wish to speak on the bill are offered -- the gentleman from florida. >> again from the perspective of being here and seeing a member of the panel, never seen an instance in which a witness would thwart our responsibility

in such an offensive manner. i am saddened that the ranking member would not work with us on moving forward. he said some things that are correct. he said some things that are dramatically wrong. first of all if you hold up the constitution, just open it up and it has three distinct branches of government. in fact, a legislative branch, and executive branch and the judicial branch. rights are contained at the end and the bill of rights and we want to comply with those. but in fact, the right of this committee and the congress to conduct its business as set forth by the constitution is being, tempted to be thwarted by a government employee.

our job, we were sent here to review the conduct. it's clear in the constitution and this committee is very important to conduct oversight and investigation. lois lerner is a federal employee who failed to appear at our request. under the rules of the house and this committee, she was issued a subpoena. she appeared, she was given the opportunity to exert her fifth amendment. she in fact waived that right by giving her testimony and her position, thumbing her nose at this rightful committee under the constitution and our legislative authority. lois lerner is in fact a poster child for thumbing her nose,

federal your cat -- bureaucrats thumbing her nose at congress and i'm telling you i have absolutely had it with what we see. the power of this newest state. it's not in the constitution that there is a fourth branch that can tell us to go to hell. we have a responsibility to investigate what was going on. she has given her rights and what the ranking member said at the end is correct. we will follow the process. the decision here today is this committee to act on the resolution and in fact this individual has thwarted the responsibility of this committee to investigate for her to testify. she will be given the opportunity when she comes back to take the fifth but in fact we are voting today on the fact that she waived it. that is a committee decision and we have the right to make that. we should back our chairman and

the committee for the precedence for the future. this may not always be a republican majority and it's important that this precedent for the future be set. today is a showdown really and who is in control of the government and whether we honor the constitution. the rules of this committee and our responsibility as members of congress sent here on behalf of people out there this morning who got up in the middle of the night worked on their taxes expecting us to oversee what the bureaucrats are doing. and in fact when you have the financial arm, the irs of the united states spinning out of control as we are seeing it in this instance with it bureaucrats thumbing her nose at us and our process, there is something dramatically wrong. so i urge the adoption of this resolution. she will have her day to come back. she will have her right to

exercise her fifth amendment right and the ranking member is correct. she may be held in contempt in the future. but again, this is in fact a showdown today between an emerging bureaucracy that has spun out of control and if you don't see it folks, you are in trouble and the system is in trouble. i yield back. >> the gentlelady from columbia seek recognition? >> at the appropriate time mr. chairman. >> the clerk will designate the amendment. >> amendment to the nature of substitute to the resolution of the committee on oversight and government reform offered by ms. norton of the district of columbia. >> the memo as considered as read and distributed to all members and the gentlelady is recognized. >> thank you mr. chairman. this committee is fond of citing the constitution. i offer this resolution in order to allow showing it.

i agree with the chairman that the hearing would be unusual when there's reported misconduct. we only have a hearing when someone objects. what i think is also clear is that this is a novel issue and all one has to do is to look at the authorities and see how they line up on both sides of when a witness waives her constitutional rights. both sides are anxious to question lois lerner because she may be the witness and the only position to get to the root of where the origin of the controversy involvement -- and balding the irs was. the justice department has

itself opened an investigation. ms. lerner took the fifth amendment and issued a short statement proclaiming her innocence. i have looked at the authorities. the reason i offer this amendment and an h. or of a substitute is that although i have spent most of my professional life when i was not a public official ,-com,-com ma either as a practicing lawyer or as a law professor, tenured professor of law as i am still today, i have no immediate opinion, pro or con, and still do not. i have only had a few minutes on my own twos -- so i decided to

write this resolution last night only upon learning that there would be a float on this matter and i would have to vote that an american citizen had waived a constitutional right. that is a very heavy burden. i learned that in the correspondence from the ranking member, that there had been an expert opinion from house counsel. that counsel was regarded as an attorney-client matter. it was not available to us. i learned further of course that ms. lerner's counsel had written to the committee to offer his authority that she did not waive her constitutional right. clearly, wherever you come down on this issue there are decidedly different precedence

on plan american citizen waves her constitutional right, including her fifth amendment rights. i do not see any basis for the committee to conclude that the question of waiver is clear and settled on the information before us now. my resolution might well yield no different result from what the chairman seeks through his resolution. but it calls for a hearing that at the very least would educate members sufficiently to make them feel comfortable and actually voting that an american citizen had waived a precious constitutional right. the fifth amendment has become perhaps the most unpopular

amendment of all the amendments in the bill of rights. but it was one of the favorites of the framers. no court would strictly construe a waiver of any constitutional right without more information than we have before us now. we are not a court, but i thought the committee took seriously, even revered, the constitution. the fifth amendment has a long and storied history in this congress. much of it among the most discredited in the history of this body. the point of calling lois lerner was to discover what no other witness can tell us. it is still our purpose. >> if the gentlelady could

please wrap up. >> it is still our purpose. i had hoped that we could find a way to get to the real point of hearing from her perhaps by offering her immunity through some kind of negotiations with her counsel since that is what we all want. waiving voting, to waive her constitutional rights must be the very last resort. with all due respect mr. chairman i do not believe we are at that point. >> would the gentlelady yield? i am not going to be supporting your amendment that what i wanted to make clear was all the things he said including trying to get her to give testimony and the possibility of limited immunity and so on, all of that by definition comes after mr. gowdy's assertion during an earlier hearing that she had waived. alternately as i said earlier and i think you are you're here for it, we are dealing with a

motion that originated from mr. gowdy that she had waived. a decision that i reserve for 37 days. >> i don't understand. are you saying that since she waived we don't need to discuss whether perhaps she would testify if given immunity? >> no, her counsel, the decision whether she waived and the decision whether or not they would proffer and all those other decisions quite frankly are not going to happen until after we conclude her testimony which she began, continued and then stopped earlier. she is still a witness pending from a recessed hearing and that is really what we are doing today is preparing to go forward with the hearing. >> have you considered offering her immunity? a. i ask? have you considered offering her immunity so we may discover the very evidence we seek from her? >> madam i apologize but there are some things that cannot be said in an open hearing.

>> yet we are supposed to vote that she will waive her constitutional rights? that is a serious burden to put on us without more information. >> i appreciate that we were all here are eligible to be here. we have noticed this markup pursuant to the committee rules. the gentlelady have 37 days in which to seek counsel. >> 37 days in the notice of this hearing? >> 37 days to seek counsel and the question to the counsel. [inaudible] >> the gentlelady's time has expired. i will now recognize the gentleman from south carolina. >> thank you mr. chairman. at first blush this prospect of having another hearing would not disclose one single solitary relevant fact. all facts necessary or that would be at the disposal of this committee are already in the record. ms. lerner is not coming back and mr. chairman i don't need

law professors to call for a second hearing and readme to case law. there is not going to be one additional fact uncovered at a second hearing. so what facts do we have at our disposal? mr. chairman i have identified nine separate specific assertions made by lois lerner on may the 22nd and that was after she asserted her right against privilege, nine separate factual assertions including mr. chairman i have done nothing wrong, i have roped in no laws, it provided no false information. i have violated no iras rules. i have violated no irs regulations. then mr. chairman she authenticated a document. all of this mr. chairman after she invoked her right to remain silent. nine separate factual assertions and the authenticating of the

document after with the of issa counsel. i hasten to add, with the advice of counsel sitting right behind her. she testified to nine separate factual assertions and then authenticated a meant. so mr. chairman, the case law to me is clear. that is not the way the fifth amendment works. you don't get to tell your side of the story and then avoid the very process that you have in the system for eliciting the truth which is cross-examination. why do we have a confrontation clause? to my colleague on the other side of the aisle, why do we have a consultation clause? because cross-examination is the best tech meet him, the best tactic for eliciting the truth. every witness have to sit on the stand and they have to weigh and balance what are the benefits of saying nothing which is my right or what are the benefits of giving my side of the story? that is what the balance to say

nothing versus telling the your side of the story that mr. chairman there is no contemplation in the constitution that you tell your side of the story and you are never cross examine. the supreme court agrees with us. mr. chairman these are just two courts from the supreme court. the witness may not testify voluntarily about a subject and invoked the privilege against self-incrimination when questioned about the details. similarly an brown versus the united states the witness waived the privilege by voluntarily giving exculpatory -- exculpatory question. a denial activity that might provide a basis for constitution constitutes a waiver of that privilege. yes she has a fifth amendment right to remain silent. she sat there and could have said nothing. we had a witness this week who did that. we had a witness this week who said nothing. she did and. she made nine separate factual

assertions and then she authenticated a document. if that is not waiver, if that is not express waiver then surely it's implied waiver and if it's not in implied waiver what is? if giving your side of it, nine separate facts and mr. chairman i have to add this. because aside from certain factual assertions this witness volunteered and this is important. she testified that she has done quote nothing wrong. i know my friends on the other side of the aisle will conclude that is an amazingly wrong statement. it's tantamount to a double-dedouble-de cker. i have done nothing wrong so let's flip it around. what she's really saying is i have done everything right. to say i had done nothing wrong

is to really say i have done everything right. so mr. chairman what possibly could be a broader assertion of facts than to say i have done everything right? i want to say the same conclusion because my time is almost up. i've had private conversations with colleagues on the other side of the aisle whose opinions i respect very much and i'm not going to disclose those private conversations other to say i have an effective from their counsel. there are very good attorneys on the other side of the aisle as they're on the side of the aisle. the way i view this mr. chairman is this is congress asserting its constitutional obligation to provide oversight. yes, she is a constitutional right to remain silent and she could have evolved it but she did not. and we have a constitutional obligation to provide oversight. so we can have another hearing.

i have great respect for the gentlelady from the district of columbia but let's be honest with each other, there's not going to be one more fact as part of his record, not one. we are going to bring in a law professor to say that she waives and you will bring in a law professor to say that she did not and we will be right back here. although the facts we are going to have her here right now, nine separate factual assertions. it if that is not invoking your right to remain silent than there is to no such thing as a waiver, no such thing. >> the gentleman yields back. for what purpose does the gentleman from virginia writes? >> i wished to speak to the resolution. >> the gentleman is recognized for five minutes. >> as a matter of clarification would be general one be speaking to the amendment to the resolution or the amendment -- resolution? >> the gentleman is recognized to speak in regular order. >> could i asked that my time be restored? >> no, you took it.

>> thank you mr. chairman. i wish to support the amendment offered by the gentlelady from the district of columbia because i think actually there are more facts to be heard and their other there are other points of view to be heard. what we are about today is not to prosecute lois lerner, it ably though our colleague from south carolina seems to be doing. it is to ensure the protection of the constitutional rights of a citizen. mr. mica, my friend from florida -- thumbing her nose from congress and that is what this is about. that is not what this is about. this is first and foremost lois lois lerner an american citizen invoking one of the most sacred privilege is enshrined to the bill of rights, her fifth amendment right to protect

herself. the record will show from the very beginning when she was summoned to this committee she resisted and she invoked her fifth amendment right. she came here under subpoena, a partisan issued subpoena i might add, not supported by our side, against her will. and she made a statement and then refuse to answer any questions and was dismissed by the chairman. mr. gotti would have you believe that the law says the fact that she made any statement at all constitutes a waiver of her constitutional rights not to self-incrimate. i beg to differ. case law is very clear. the fact that she made a statement does not somehow constitute a waiver and in fact there is a famous case during a different era when -- in which mr. hoge said, made a statement.

i've never engaged in espionage nor sabotage and i will not so engage in the future. i am not a spy or saboteur and then he invoked his fifth amendment and the court found that did not constitute a waiver just like this case. the dispositive case and laws the famous quinn case in which the supreme court was crystal clear that it is a very high standard you have to meet before you can determine that someone in fact his waived their fifth amendment. i think the record is quite clear. ms. lois intended quite clear from the beginning to invoke her fifth amendment and protect herself as an american citizen is entitled stephen to we would like to hear her testimony. i would too. if we do this today every american citizen is at risk who is ever summoned before this committee and it could be construed, though i am sure that is not the intent, that by

insisting she appear here under subpoena and having her at the witness table, she could claim, one observer could say a constituted entrapment. i am sure that is not what our intent was, but i will point out that the d.c. bar ethics code says explicitly that when someone has invoked the fifth amendment it is wrong to bring them before committee and the word they use is, the only purpose to be served by doing that is to tolerate them. that is the verb. which invokes images of different eras in american history that the fifth amendment was designed to prevent from recurring like the salem witch trials. where people were pilloried and worse. i believe that if we pass this resolution we are trampling on

the rights of an american citizen and that trumps everything. that trumps the need for her testimony. that trumps her status as a federal employee. that trumps her status as an official at the irs. if we are not above protecting the rights of american citizens, what are we about as members of congress? i urge my colleagues to put aside politics here. i urge my colleagues especially on the other side to think carefully about what we are about to do. you may make a small political gain by passing this resolution, an enormous long-term cost and you will erode the confidence of the american people and what we are about. and there is an institutional commitment all of us need to be concerned about. and i plead with my colleagues to think carefully. why not take some time and have a hearing so that we can air

this out? i yield back. >> i think the gentleman and now recognize the gentleman from tennessee. >> thank you mr. chairman and i rise to speak in opposition to the amendment in the nature of a substitute. >> the gentleman is recognized. >> i think the actions of the chairman and bringing forth this resolution are entirely appropriate and i understand are being done under the advice of house counsel and i wish to second the remarks by my colleague, mr. gowdy. i spent many years as a lawyer and a judge before coming to congress and spent the last seven and a half years as a judge trying a criminal felony cases. it aired free article in every case i've read about the fifth amendment would not have allowed and in fact as a lawyer i never would have advised a client that they could give a statement

under oath and then plead the fifth. as a judge i never would have allowed a defendant in my court to testify and make a statement and emphatically declared their innocence and then plead the fifth at that point. that would make a mockery out of the fifth amendment and i think it's accurate to say and i think the record will show that i was the judge who leaned very much in favor of defendants. i was never a prosecutor as mr. gowdy was and i did everything possible as a judge to bend over backwards to make sure that all defendants appearing in my court got every right that they were entitled to. but, lois lerner came in here and as mr. gowdy said on nine separate occasions emphatically declared her innocence or strongly asserted that she had

done nothing wrong repeatedly. we cannot allow witnesses to testify under oath and then plead the fifth to keep from being questioned or cross examine. this would not be fair. it's not consistent with the history of our country and our judicial system. i think a key element here is this committee has operated under rules somewhat different from other committees. most other committees in congress do not swear witnesses and place them under oath before they testify. lois lerner came here under oath and essentially told her side of the case and then pled the fifth, denying myself and mr. gowdy and other members any opportunity to question her her or cross examine her. so i rise in opposition or speak in opposition to the amendment

and the nature of a substitute and i believe the actions of the chairman and bringing forth this underlying resolution are entirely appropriate and consistent with all the legal precedence in history in this country. thank you very much. >> would the gentleman yield? i thank the gentleman. i will take a short moment to respond to my good friend from virginia who spoke so eloquently about the sanctity of the fifth amendment. i think it is important and it is important that someone be represented by counsel and of course ms. lerner was but i think it's more important to realize that, most important to realize that she made voluntary decisions, not just the decision to make an opening statement that made claims and assertions on point but then to answer additional questions after she invoked her fifth amendment privilege to answer additional questions. i am not an attorney.

even though i serve on the judiciary and obviously have this obligation here today. that is why we sought counsel and took the time. it is the result of recognizing that there is both a legal precedent for this and i know many people here have not seen legal precedent and have not taken the time for it over the last 37 days but i think the important thing is the respect for the constitution is also respect for the fact that if somebody comes and gives testimony they become subject to cross-examination. and the decision here today is, did she give testimony and then choose to take the fifth and issues subject to that cross-examination? now i know everybody here in this room, if they were accused of a crime or even just being sued, they would want a right to cross-examination, rights to the

allegations made by people. she made allegations. we the people would like to simply cross examine what she said having been informed and in my opinion waived her right. i thank the gentleman for yielding and i yield back. for what purposes does the gentleman seek recognition? >> to address the amendment. >> the gentleman is recognized for five minutes. >> i think this is an incredibly important question put to this committee and all of us want to hear what ms. lerner has to say. we all want to do our job and get on with the investigation that underlies all of this but i think we are hopefully just as concerned about making sure that this committee upholds the constitution. in particular the fifth amendment right now matter what we think of the citizens earlier activities or statements. i am concerned that this is an unusual proceeding. she was subpoenaed and the attorney made it very clear that she was going to plead the fifth

and yet we continue to force her to come before the committee and as mr. connolly said, what for? to pillory her, to make an example of her, to put her in a situation where she might then be forced to waive? in the judicial process and i think mr. connolly you made it clear that is not the usual way of proceeding and intact in this d.c. bar it would be considered an unethical practice when someone in that untenable situation on that so i'm concerned from the outset of what that was about weather was about spectacle or trying to move this matter forward on that. i'm also concerned that we are really dealing with an issue of law here as my colleague indicates. you are asking this group of mostly nonlawyers or if they are lawyers not necessarily constitutional lawyers to make a decision based on compensated legal questions and it's not as cut and dried as some might wish it were. there is opinion on both sides and we have had days in the

interim where we have realized that the chairman is going to move in this direction to seek out some it buys and we got advice conflicting on both sides. i think incredibly -- who would opine on either side of issue. i think it deserves a full exposition as this amendment would do in having experts come in and brief us and testify as to what underlies their opinion on that. i know house counsel stated that ms. lerner's brief response to any question was simply a profession of her innocence. regarding the substance of the inquiry. it contained no factual representations related to the subject matter of the hearing in the generally denied wrongdoing and he would not recommend that she be brought in for contempt or found that she had waived her rights. i another legal expert from the columbia law school professor daniel rickman makes clear his opinion that ms. lerner's willingness and respond to the chairman's request that she

authenticate her prior statements prior to her fifth amendment privilege did not happen in the witness makes an admission on an affidavit submitted in any proceeding, she may lose her ability to invoke the privilege when asked about the substance later in the proceeding but willingness to authenticate should be made without a nick concessions of their voracity or prior statement. so there is conflicting information back and forth on that and although the chairman now indicates that members were supposedly allowed to see his request for a house counsel opinion i'm looking at the e-mail that can forth that says, i would also ask that you not distribute it widely parentheses like to all of your members. so my question would be which one of the members over here mr. cummings as minority would you like not to see this and would not like to be fully briefed and informed before you make that decision?

i think that is entirely unreasonable and unfair and should not have happened and that statement is offensive i think two people who might be included in that category on that basis. so we have not had ample time to get all the facts. we have been deprived. i see some eyes rolling over there but the fact of the matter is -- >> would the gentleman yield? >> i will in the second but i want to make this point as clearly as i can. the ramifications are bad for the house i would also ask that you not distribute widely to all of your members. i will yield only the gentleman wants to tell us which one of all these members of the majority did not want to see that report? >> would the gentleman yield? >> i will yield for that purpose. >> the chairman should not have to answer that question. i am sorry that you're offended that we offer any sharing of an

opinion. >> i reclaim my time. if you're not going to answer? >> i'm trying to answer question. the fact is you are saying you were offended. this was an opinion given to the majority of my request. >> he is a house counsel. >> no, that is not correct. >> which members over here do you not want to see that report? >> the gentleman's time has expired. >> the gentleman from pennsylvania, mr. meehan. >> thank you thank you mr. chairman. mr. mr. chairman of the said truth is i think we are losing a little bit of focus on what the purpose of our inquiry is here in the first place so i have great respect for the gentleman from virginia and frankly great regard for the gentlelady from washington who from the district who has looked at this from the perspective of both sides of the equation. we are doing a great deal to talk about the characterization

of lois lerner and the idea that somehow we are here attempting to embarrass the witness. i go back to the point, we are not here with regard to lois lerner. we are here because we are american citizens who were affected by the agency that she oversaw, who use their authority and the irs to what we believe to be an oppressive fashion against what could be their constitutional rights and potentially in a criminal fashion. and so what we really have here, we are engaged in a civil proceeding. to the extent to which lois lerner has rights that she can invoke using her fifth amendment, to any ultimate question that she may be accountable for any criminal forum. not here. now what she says here may be relevant and certainly there's plenty of history with regard to

that issue, but let's go through the facts of what happened here. we are here in a civil proceeding and we do have a responsibility, and oversight responsibility to address precisely that which we just articulated which is the responsibility to assure that the rights of citizens have not been oppressed by the irs. lois lerner does not have any right to refuse to answer questions before this committee unless they would in fact incriminate her. she may in fact and it's not uncommon in the civil practice of law for a person to come in and to be deposed and in the normal course of questions go through -- she is competent counsel and these are serious questions and they will be answered and at some point and time consul will take a particular question say that goes to the potential that might he a meaningful basis that could incriminate her criminally and there is a broad reading of

that. i suspect if lois lerner comes back your she will invoke the fifth amendment to quite a few, if in fact not everything. the fact of the matters would change the dynamic here is with competent counsel sitting at the table some of the best attorneys available and lois lerner is an attorney herself a practice in the department of justice. so she comes here with a higher degree of awareness of what she was doing. she voluntarily changed the dynamic. when she chose to use this forumform, a form in which he was quite aware that there was going to be a national forum for her to declare whatever it is that she wanted to do. and she used this occasion very specifically. the gentleman from south carolina went through and articulated very eloquently the number of ways in which she opened the door. i have in my hand here the letter from counsel. we knew what she was doing by

invoking the fifth. all she had to do was sit there and say, i invoke the fifth. and this case. we wouldn't be here today, but she is the one who put into this record the subject matter. >> that testimony from house oversight and government reform committee members will leave the reported testimony in go live to capitol hill. hear from house were formed committee members in this hearing to discuss whether lois lerner waived her right to remain silent in a hearing a month ago. [inaudible conversations] >> this and a member wish to

speak? [inaudible conversations] [inaudible conversations] [inaudible conversations] >> pursuant to the previous announcement the committee will come to order. is there anyone here who wishes to speak on the resolution?

i will be patient. i will recognize myself lest the time. today we have had ample debate on the question of a straightforward resolution, did ms. lois lerner on may 30, 2013 in all or part proceed after asserting her fifth amendment privilege and if so, did she waive? that will be the question to be decided in the float that will, materially. it is my assertion that she did. having heard the debate, i have not changed my position and i will reserve. for what purpose does the gentleman from massachusetts

seek recognition? >> well, mr. chairman as you know -- >> would you like to move to strike the last word on the rest luge and? the gentleman is recognized for five minutes. >> thank you sir. i would do want to let you know for the record i originally requested time on the amendment and that time has been denied me but there is nothing i can do about that now. i do agree this is a serious question before the committee. we have, we have balancing interests here. one is we certainly need to be able to call witnesses before this committee and expect the truth. i think that is at the very core of our ability to conduct meaningful oversight and reasonable oversight and that certainly is essential, especially this committee and the role that it plays. on the other hand, there is a

constitutional right in the fifth amendment to have a witness of boyd self-incrimination. that is extremely important as well, and i for one believe and i know the gentleman from florida spoke earlier today and was seemingly offended that american citizens might come before this committee and thumb their nose at their government. i think that is a constitutional right to thumb your nose at the government and they think considering the fact that congress's favorability is 6% there are probably a lot of americans that would use a different finger with respect to congress today. >> is the gentleman referring to the upcoming parades? >> i am not sure what you mean. >> don't you get waive debt in your parades? >> reclaiming my time. but think in light of the

scandals not only with the irs but with the nsa, i think a lot of americans seriously doubt the integrity of some of their governmental institutions including our own. but this hearing does not set the presidents that the gentleman from florida spoke about earlier. we have not had a hearing on this. we have not done the meaningful investigation that would explain to the court and look, we assume that there will be a contempt citation issued by this congress. it will be appealed for the court and at some point the court will look and they will say how did congress arrive -- how did the committee first of all on government reform arrived at this decision that ms. lerner was in contempt? and they will look at the underlying record. that is what they will look at.

what is the reasonableness and what is the thoroughness of congresses inquiry? i disagree with the gentleman's earlier statement, the chairman statement that we have had a lot of public debate about this. we have not had debate in this committee over this. we have not had one word. we have had debate over this motion but we have not had witnesses. we have not had constitutional scholars come in and inform the decisions of the members. we had a lot of nonlawyers, nonconstitutional lawyers and they think they will find that our decision was based on political consideration and not on meaningful inquiry and federal oversight. so, what we are doing here today will doom our efforts to hold ms. lerner accountable because we haven't done the oversight. we haven't provided the underpinnings for our decision to be upheld at the court level. we are playing into their hands

by not having a hearing because they think we could -- look, i think we have some votes on the side of this was handled correctly that you would have people who justifiably agree with the way at least an hour -- the way that ms. lerner came forward and asserted her fifth amendment rights but i think that is all being wiped out by a political process. >> this is supposed to be an investigative process and it has been none of that. we have not had the meaningful deliberative process that i think would give weight to our decision. that is a failing of this process today. this will not be presidential. ..

i never said all members. as the gentleman seek recognition? the gentleman is recognized for five minutes. >> thank you mr. chairman. this back-and-forth political bickering is an embarrassment. the gentleman from florida said earlier that this is a showdown. it's more like showing off. it's the same grandstand we have seen repeatedly on this committee. the chairman continues to focus this committee on divisive hearings and which haunts rather

than identifying solutions to government programs and agencies. mr. chairman, instead of bringing up a resolution to challenge a person's right to plead the fifth, why aren't we bringing forward a resolution to require the irs to bring the 501c4 regulation primarily into compliance with federal law which does exclusively. this is no longer just about the lowest learners. there are clearly problems at the irs. that much is clear. but instead of this resolution, why aren't we following up to the nine recommendations that the inspector general has already made to guarantee that the targeting that happens to both conservative and liberal groups never happens again? mr. chairman, these are the issues the american people want us to focus on. not more partisan bickering and

gridlock. until we focus on solutions, the congress will continue to be held in the lowest of re among the american public. and i for one don't want to be part of tearing this institution down, but building up. but the american people are rightfully upset with us -- >> excuse me. would the gentleman yield? >> no, i will not. the american people are rightfully upset with us and it is because of what we are doing here today. who are we in the committee to take any constitutional rights. this resolution does nothing to fix it. this process is completely improper, and nothing more than an opportunity to grandstand. so, i will oppose the motion. >> will the gentleman yield? >> no, i will not.

i have not yielded mr. chairman. >> we will have regular order. it's the gentleman's time. >> it is the gentleman's time. >> in the inspector general report we have not taken any time to follow-up on or implement. we've heard from the acting commissioner on the irs the regulation is in compliance with federal law. we've taken no action to bring forward a resolution directing the irs to do its job to update the regulations so that it's in compliance with federal law. we've taken no action to reform the other aspect of the irs agency, which there is agreement on both sides needs to be fixed. all i'm asking for mr. chairman, is for us, the members of the

body to do our job. i'm not a lawyer and i am not here to decide whether or not this resolution, taking away someone's constitutional right is proper. but what i hear is the representative of my constituents and they didn't send me here to take away the rights of people. they sent me here to represent them and to make sure they're government does a better job of serving them and today mr. chairman this resolution does them no service. >> with the gentleman yield to the chair, please? >> i take no exception to the right of your opinion. i might suggest that this resolution is there or not the gentle lady when she appeared gave away her rights. i might also if you don't mind mengin a later consideration of contempt and other proceedings would be the point at which any action against her would be

taken. today we are simply considering and advice of counsel and i appreciate the gentleman. >> reclaiming my time. >> the issue on the opinion is the committee members on our side just were able to review it isn't even conclusive. there is nothing conclusive and a legal opinion that questions the witness's fifth amendment. in fact had they continued in their testimony and responded to questions from members, that's not what the witness did. they gave an opening statement. they refused to answer any further and they were excused by the chair. so that alone should be why this resolution is not passed and why we should get back to the work of what the committee should really be focused on on the government reform to read some of the gentle lady from wyoming. >> thank you, mr. chairman.

in light of the fact they put this entire committee on notice of his concern that she waived her constitutional right against self-incrimination on the day that she appeared before the committee and gave testimony i move the previous question. >> the previous question is order. all in favor say aye. no. in the opinion of the chair the ayes have it. the previous question is preemptive and on the approval of the resolution. all those in favor signify by saying aye. any opposed come as the 12th. in the opinion of the chair the ayes have it. the resolution is agreed to. this committee stands adjourned.

>> roll call is being ordered. the clerk will call the roll. [roll call] [roll call] [roll call]

[roll call] [roll call] [roll call] >> voting on what? >> voting no to the mccarthy tactics that we are having today that we are allowed to finish talking about. so i am voting no.

[roll call] >> how is mr. mchenry record it? >> mr. mchenry is recorded as voting aye. >> and mr. what all? >> he has not been recorded. >> is their anyone else that seeks a recognition to vote? >> you are recorded voting aye.

>> with the clerk will report. >> 22 ayes and 17 noes the resolution is agreed to one finding the lowest lerner waved her privileges on may 22nd, 2013 is approved and we stand adjourned.

[inaudible conversations]

>> the house oversight government reform committee members wrapping up their meeting in the voting 22 to 17. in favor of a resolution finding that irs director of xm de organizations, waived her right to remain silent at a hearing a month ago. she was called to give testimony on the targeting for certain conservative organizations. ms. lerner was in charge of the tax-exempt organizations office and. this could mean she will be called back to testify before the committee. we are hearing from you on the hearing this morning. alan said if anyone made the question political with the irs itself by targeting conservative groups. also this, ask why they are so

anxious to keep a look now at lois lerner's testimony before the committee last month. this is about ten minutes we will have that appearance before the house oversight government reform committee for you later. by the way you can see the

hearing again. lois lerner's appearance that and may any time at c-span.org. coverage continues as we follow the republican candidate rand paul speaking at a fund-raising dinner in colombia. after that and even from wednesday with former governor jeb bush who gave the keynote address at the conservative party of new york. that starts this evening at 6:30 eastern on c-span. >> i was also looking at things that were completely

pessimistic. i think we could have won, but with a that you take away some burned out two-thirds occupied even fought without, they wouldn't have recovered much of the western part of the byzantine rahman tire. i don't think that there was a union general who could have taken atlanta at the cost the we took it, very small cost compared to what was going on in virginia. i don't know anybody that could have done that. and i wish i could say that there were american general's maybe one or two that could have done with the general petraeus did.

the 74 and other regiments were recruited by the general early in the war to form the excelsior brigade out of new york. this particular regiment was recruited in the fire halls of new york city. so the firemen of new york city answered the call to come to do the into the army as union soldiers. and about 350 of them out here on july 2nd will suffer 46% casualties paid the dedication, the honorable robert said this. the highest to the sense of their duty and the greater

degree of the chivalrous a look once of even the most gifted orator. >> 150th anniversary of the battle of gettysburg. live coverage sunday begins 9:30 with historians throughout the day. cbs news bob schieffer interviews journalists who first broke news of the nsa surveillance program called

prism. he got information from contractor edward snowden who remains in a russian airport terminal. he's a pulitzer prize winner from vice president cheney who is joined at this event by david sanger of "the new york times". >> thank you very much, andrew and all of you for coming. i had a feeling we would have a big turnout for this one. we try to stay on the news. we are very much on the news today. art who has had his name in the paper a lot, "the washington post," he is the winner of the two pulitzers and wrote a book and glorified the vice president cheney, it was a best-seller and was chosen as the times book of the year, works for "the washington post," "time" magazine and of course he is the one the "washington post" had their first story about edward

snowen. right over here my good friend, david singer he has been on that pulitzer and he worked there for 30 years. so she's probably worked at one place water than anybody which is really good. and he has to books about the obama administration, the most recent of course is come front and conceal. you have some information in that book that had not then before your book came out so you had some experience on that and then jim lewis, who is of course the senior fellow here at csis. a knowledge expert i think on the cyber war and cybersecurity. he's been in and out of the government and has a ph.d. from the university of chicago. so a very long resume for all of these gentlemen but we will stop

there. i want to just ask you to start off with a question why did the "washington post" think it should published this story? >> i will speak for myself. i think it does represent the view on this. why wouldn't we? we had a situation in which the congress passed the law that said very little, that the executive makes in the interpretation of what will allow all says and it creates a program that goes to the court and gets the intelligence surveillance court that works only in highly classified ways and with no other parties present and they make a secret ruling. all of this is around where

should the limit to be between intelligence gathering and privacy and civil liberties? that is a conversation that we haven't had an opportunity to debate in the country about the general public. and, on the foundational questions on power talking about the transparency of citizens and the government that is supposed to serve them, i think that there were lots of things in this material that needed to be approached, and i think the confirmation of that comes from the fact that there had been an extended -- for several weeks now come a very public debate about where these lines should be. >> did you have any concerns about the national security that it might be damaged with what he published? >> i did. over my career in journalism having covered a lot of national security stories, they're had been quite a few times when i

saw a really hard balance to be struck and when i had conversations with the government about their concerns i tell you how i started the first conversation. i said i'm not going to hand you this document that i have but here is the date and title and author and before we start talking i want you to know there are 2127 we are not even thinking about what's talk about the rest. >> and this is the way the you presented it to the post kind of in that way? >> when i came to the post i had a similar conversation. you are going to make your own decisions. i came back to them on contract so they make their own decisions about what you are willing to publish and this is the part i would not be willing to publish.

>> is the story different in any way from when you did your book? because we learned for the first time about the ability is the united states has. did you go for the same process clacks >> i think there were a couple of differences and i commend him for his enterprise and the way that he handled it which was extremely responsible. the difference was in the stories from the times and the expert from the field which was about the olympic games for the offensive side operation against iran and also the first sophisticated use of the cyber webinar i think a was similar to

what you just heard that in both the case of where the government draws the line between personal privacy and doing the kind of surveillance needed for defense and where the government draws the line on the use of offensive weapons it is done in secret and in many cases you have to ask the question how much of this means to be secret because it's keeping operational details secret which i think we all understand the need to go do that and how much of this needs to be debated by the u.s. public and a broad public and american citizens because it is done in their name. the responsible way to do it is to go to the government and say this is what i have. the key elements are going to get published and the question is if there are security

concerns that would endanger somebody's life and in danger an ongoing operation and so forth. we are willing to sit down and a view that and make a case and i took things off the table and shouldn't even get into a conversation with and then in other cases there were responsible people in the government who made the case. and i found over the years the case of my buckles and the first time that usually once you get involved in that conversation you can narrow down the subject matter pretty quickly if you are dealing with relatively easy people and once you have the essence of the story they are not simply going to say well, we are just not even going to discuss this. that raises a more fundamental question which is why is it the press gets to do this and that comes to an understanding that

many people in the united states understand the role of the media is and it is disputed by others and i don't think there are any absolutes here. the government would like to say that it's classified and should never be published. the fact of the matter is that almost everything in the realm you write about when you are writing about national security is classified in some form. i don't think you can write about the nuclear weapons program or north korea or the dealings with china without running into something that is classified somewhere. i didn't have documents. i had a story that was assembled over the places of year-and-a-half. and they had specific documents and that kicks into gear in different parts of the classification. >> so, you have seen these kind of situations before from both inside the government and

outside the government. what do you think of the story? >> it's true i think i'm the only one on the panel who has been in sight of the bill so to speak and actually one of the things i'm wondering -- i went through my five-year review why bother it can be in the poster. there is no doubt people in the community are a little depressed so i feel a lot of empathy for them but we will rebuild. in this case i agree more transparency would be a good thing if they had given more information on a program to begin with it would have been easier to manage the public reaction. but at the same time i am offered more transparency i think the program needs to continue. so i hope the debate doesn't lead us into one of these compromises we set up a new advisory board or additional constraints i think that would be a mistake. >> if some of the claims to that

snowen made, i have people both on the record on television and off the record saying he overstated his abilities. do you think he did? >> i love those television shows and movies they show an off-center in the cia and they say get the video on st. peter's square and immediately it pops up. come on, folks. technically it is possible to target someone and get their phone calls but there are many legal constraints. you have to work with the legal constraints to know how difficult it is. it's not that easy. there are operational and legal issues. it's not like the movies. >> but did he overstayed his abilities? >> he had a productive and looked like he was saying come

to me bring me the money and i will bring you the good stuff so i think he was overselling. >> i'm not his lawyer or advocate and i am saying only what i think is true and that i can verify. i wouldn't be so sure that he's wrong about this. what he is right about for sure are the legal constraints jim is talking about are either lines of courage or policy and the rules and regulations and supervisory chains and the audit trail given that it's taken place in secret can be used. his principal point is that there has been a buildup without our knowledge a remarkably powerful that is touching every american household even though they are not listening in on all of our calls and that the main constraint on that