Professor Kami Chavis Simmons provides expertise for Congress on IRS tax scandal involving Lois Lerner

Photo of Wake Forest Law Professor Kami Chavis

Professor Kami Chavis

Professor Kami Chavis Simmons is among the independent experts who consulted with the Congressional committee regarding possible contempt charges in the IRS tax exempt scandal involving former IRS official Lois Lerner. Lerner is a witness in the Committee’s ongoing investigation of alleged irregularities by the Internal Revenue Service (IRS) in the processing of applications by certain organizations for tax-exempt status.

A House hearing on the IRS tax exempt scandal was held on Wednesday, March 5. At the hearing, Lerner once again invoked her Fifth Amendment rights by refusing to answer questions from the House Oversight and Government Reform Committee regarding “her role in allegedly singling out Tea Party and other conservative groups for extra scrutiny when they applied for tax-exempt status,” according to Sam Frizzell in an article for TIME.

After Lerner refused to testify, a heated debate occurred between ranking Democratic Rep. Elijah Cummings (D-Md.) and Committee Chairman Rep. Darrell Issa (R-Calif.) which escalated when Issa turned off the microphone while Cummings was still speaking.

Cummings, Ranking Minority Member, House Committee on Oversight and Government Reform, asked Morton Rosenberg, Legislative Consultant, to provide response with the independent experts that discussed Constitutional due process prerequisites for contempt of congress citations and prosecutions regarding the hearing.

In the document Rosenberg provided to Cummings on March 12, Professor Simmons, who is a former federal prosecutor with expertise in criminal procedure, stated for the committee:

“I agree with the legal analysis provided by Mr. Rosenberg, as well the comments of other legal experts. The Supreme Court’s holding in Quinn v. U.S., is instructive here. In Quinn, the Supreme Court held that a conviction for criminal contempt cannot stand where a witness before a Congressional committee refuses to answer questions based on the assertion of his fifth-amendment privilege against self-incrimination “unless the witness is clearly apprised that the committee demands his answer notwithstanding his objections.” Quinn v. U.S., 349, U.S. 155, 165 (1955). Case law relying on Quinn similarly indicates that there can be no conviction where the witness was “never confronted with a clear-cut choice between compliance and noncompliance, between answering the question and risking prosecution for contempt.” Emspak v. U.S., 349 U.S. 190, 202 (1955). Based on the record in this case, the witness was not confronted with a choice between compliance and non-compliance. Thus, the initiation of a contempt proceeding seems inappropriate here.

“There are additional concerns related to the initiation of criminal contempt proceedings in the instant case. Here, the witness, who was compelled to appear before Congress, made statements declaring only her innocence and otherwise made no incriminating statements. Pursuing a contempt proceeding based on these facts, may set an interesting precedent for witnesses appearing before congressional committees, and could result in the unintended consequence of inhibiting future Congressional investigations.”

The original document is available here.

Simmons, who joined the Wake Forest University School of Law faculty in 2006, brings substantial experience to teaching and writing about criminal law. After receiving her J.D. from Harvard Law School, she worked as an associate at private law firms in Washington, D.C., where she participated in various aspects of civil litigation, white-collar criminal defense, and internal investigations. In 2003, she became an Assistant United States Attorney for the District of Columbia, involving her in a wide range of criminal prosecutions and in arguing and briefing appeals before the District of Columbia Court of Appeals. Professor Simmons frequently makes presentations on law-enforcement issues and is a leader in the field of police accountability. Her articles have appeared in the University of Alabama Law Review, the Journal of Criminal Law and Criminology and the Catholic University Law Review, and other legal journals.  Her research focuses on using Cooperative Federalism principals and stakeholder participation to implement sustainable reforms in the criminal justice system.  Her article, “Subverting Symbolism: The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act and Cooperative Federalism” will appear in the American Criminal Law Review in 2012.