thank you...
Posted on 05/10/2014 6:52:48 PM PDT by smoothsailing
May 10, 2014
In this week’s episode of the Capitol Hill soap opera, Lois Lerner, the apparatchik at the center of the IRS jihad against conservative groups, was at long, long last held in contempt of Congress. Amid the farce, the House’s IRS probe is floundering.
Ironically, this happens just as the chamber’s separate probe of the Benghazi massacre has been given a chance to succeed. That is because House speaker John Boehner, after over a year of delay, has finally agreed to appoint a “select committee” to investigate Benghazi. Congress has no constitutional authority to enforce the laws it writes, a power our system vests solely in the executive branch. But a select committee, with a mission to find out what happened — as opposed to conducting oversight through the prism of some committee’s narrow subject-matter jurisdiction (judiciary, budget, education, reform, etc.) — is the closest legislative analogue to a grand jury.
Of course, a grand jury operates in secrecy, as is appropriate for protecting the privacy of the innocent while gathering evidence against the guilty. Congressional investigations are generally conducted in the open by ambitious politicians, an atmosphere that can be as conducive to spectacle as to a search for the truth. As Charles Krauthammer sagely observes, the success of the Benghazi investigation now hinges on the ability of chairman Trey Gowdy (R., S.C.) to impose on the select committee the discipline of his long prosecutorial experience — to “keep the proceedings clean, factual, and dispassionate.” But if he can do that, the select-committee structure and focus has a chance of breaking through the Obama stonewall and getting to the bottom of things.
The IRS investigation, to the contrary, remains mired in Capitol Hill’s labyrinth of committees and subcommittees. To be sure, some important information has been uncovered. But the case is languishing. Indeed, during the House’s months of dithering over the contempt citation — which is meaningless from an investigative standpoint, however consequential it may be politically — the Obama administration has busied itself codifying the very abuses President Obama claimed to find “outrageous” and “unacceptable” when they first came to light.
In a competent investigation, one designed to find out what actually happened, Lois Lerner would have been immunized months ago. That is, Congress would have voted to compel her testimony by assuring that her statements could not be used against her in any future prosecution — removing the obstacle of her Fifth Amendment privilege against self-incrimination.
The variety of fact patterns that can be investigated is infinite. Still, almost all of them fall into just a few categories of enforcement action dictated by the public interest. Let’s look at two of them.
Sometimes, behavior is heinous but essentially private — i.e., of interest mainly to the people directly affected by the misconduct. In such cases, the priority is to prosecute and punish the wrongdoers, so you obviously resist granting immunity to a culpable party.
In other situations, reprehensible behavior affects the public at large. This is almost always the case when government power has been abused: The gravity of the misconduct transcends the injury to the private parties directly affected. It portends rampant violation of fundamental rights and undermines our trust in faithful execution of the laws. In such circumstances, it is imperative to achieve political accountability and a complete record of what went wrong so that any necessary policy changes can be made. Holding wrongdoers criminally culpable is secondary. Further, even if criminal accountability were a priority, the point would be to identify the highest-ranking wrongdoers — the people who are insulated and cannot be reached absent testimony from their accomplices.
Lois Lerner clearly presents the second situation . . . though that is apparently less than clear to the folks running the House. Asked about the IRS scandal recently, Speaker Boehner declared, “I don’t care who is going to be fired. I want to know who is going to jail!” That’s a good, fiery sound bite for the campaign season, but it’s exactly wrong.
When officials prove unfit for government power, taking that power away is the highest public interest. Even if you’ve deluded yourself into thinking the Obama Justice Department would lift a finger to prosecute Lois Lerner, who cares if she ever sees the inside of a jail cell? What matters is laying bare the entirety of the scheme and finding out how high it goes: Who and what induced her to orchestrate the harassment of conservative groups? Why was the government’s fearsome tax agency placed in the service of the Democratic party’s political needs?
To get the answers to those questions, you need Ms. Lerner to testify. Instead, the House has wasted a full year chewing over a tough legal issue that, even if it were ultimately resolved in the Oversight Committee’s favor, would not get her any closer to answering questions — at least not for a long time.
The Fifth Amendment privilege is, as the legal beagles say, a shield, not a sword. It is your protection. It is not an offensive propaganda weapon enabling you to give your exculpatory version of events but then refuse to be cross-examined — as Lerner is justifiably accused of doing. There is debate, however, over what constitutes giving your exculpatory version of events. A sweeping, conclusory claim of innocence (e.g., “I am not guilty”) may not amount to waiving the privilege, while a detailed description of what purportedly makes you not guilty clearly would.
Ms. Lerner’s first appearance before the committee last May fits someplace between the two. Having litigated this issue a few times over the years, I believe she probably gave enough detail to be deemed to have waived her right not to incriminate herself. The counterargument, however, is not frivolous. I would not want to wager on how a court would resolve it, nor would I hold my breath waiting for a final resolution.
But why are we arguing over such nonsense? This is not a law-school exam, it is an investigation — a hugely significant one. The point is to find out what happened, not to prevail, at the end of a long haul, on difficult and tangential constitutional-law disputes.
Let’s assume for argument’s sake that holding Lerner in contempt bolsters the committee’s case for an expeditious judicial determination that she has waived her privilege and must testify. Let’s even pretend that she will decide not to hold up the works even longer by trying to appeal. Where will we be when that happens, say, several weeks from now? We’ll be exactly where we could be right now — and should have been many months ago — if Lerner had been immunized: namely, at the point of compelling her testimony.
“But wait,” you say, “if we immunize her, we can’t prosecute her.” My first impulse is to say, “So what?” If she testifies truthfully and gives a full account of what happened, we’ll be a lot more interested in pursuing the officials who instigated the scheme than in prosecuting those who carried it out. But if “Who is going to jail!” is really your big concern, immunity for Ms. Lerner does not protect her if she lies or obstructs the investigation. The statute of limitations on such crimes will not have run out when a new administration takes over in 2017. She could still be prosecuted, and the penalties for those crimes are more severe than whatever her actions at the IRS could have earned her.
If the House really wants to get to the bottom of the IRS abuses, it is long past time to immunize Lerner. Let’s find out what she knows and advance the public’s knowledge of the facts. It will then be possible to determine which, if any, higher-ranking officials in the Obama administration were involved: Were they active participants? Nod-and-a-wink approvers? Unknowing, incidental beneficiaries of the inability of conservative groups to organize effectively?
As things stand right now, the congressional investigation is going nowhere. There is also good reason to doubt that it will ever go anywhere unless it is assigned to a select committee. This week’s contempt drama does not hide these stubborn facts.
— Andrew C. McCarthy is a policy fellow at the National Review Institute. His next book, Faithless Execution: Building the Political Case for Obama’s Impeachment, will be released by Encounter Books on June 3.
She should be water boarded.
thank you...
Lerner and her attorneys have not offered up a proffer. You can’t give somebody immunity without a proffer. I mean you can, but it’s stupid to grant immunity before you know what you’re getting. The proverbial pig in a poke.
What they should do is strip away her limited IRS immunity and allow her to be subject to Civil Suits from the organizations she stomped on.
The House should start offering up bills that address the IRS immunity and the intrinsic gag order that supposedly keeps them protected from divulging their sources. They should have one every Tuesday morning for Reid to kill then keep pointing at the Liberal Conspiracy to suppress evidence and impede investigations.
That’s why she needs to submit a proffer for immunity. No proffer, no immunity. It’s pretty standard.
If she refuses to submit a proffer it just tells me she’s going to take the full fall while the administration impedes any punishment.
No prob, Chode. This stuff is confusing for the average Joe.
It’s an excellent point.
And the `movers and shakers’ should think that we know what they’re doing.
Thanks for the post. I wasn’t aware of the IRS immunity and gag order angle to this. That’s certainly worth pursuing, I wonder if they will.
That would certainly send a LOUD message.
Prosecuting Lois Lerner for contempt of Congress is like prosecuting Adolph Eichmann for the Holocost. It’s just a case of going after a fanatical mid-level functionary for the atrocities that were ordered by his or her superiors. The national interest is to get the superiors. Andy is right. Give her immunity, squeeze her HARD, and get the Mahdi and his accomplices, just like getting Hitler, Himmler, and the rest of the Nazi subhuman criminals.
Apparently this article was written prior to the IRS stating it would finally release all the requested emails.
I have been thinking this myself for a while.
It would have been fantastic to have been able to answer her initial taking of the 5th by saying...
“OK, we thought you might say that so we are giving you immunity. Now you are going to answer our questions...”
Or maybe taking a vote of the committee on it right then. Interesting to think of how Mr. Cummings would have voted on that.
Her jaw would have dropped right then as she could not possibly have anticipated actually having to testify. Facing reality is not something liberals take well.
True the house can arrest her.
Giving immunity guaranties she will never tell the truth, why would she? She would face no jail time or even the possibility of treason charges, which it appears to me she could well be charged with, along with abuse of power, and in the case private property was seized looks like theft by unlawful taking, if the seizure resulted from a political investigation. F*(k her, and break one off in her arrogant butt.
“Giving immunity guaranties she will never tell the truth, why would she?”
Because her end of the deal would be to cooperate fully. If she were to mislead or omit, and they could prove it, she would be prison-bound.
If they had the stones to do so....
I’d grant her immunity in a NY minute if she told us everything, including names, upfront. No names, no immunity. Connect the dots, and she gets immunity. Tell us what you know upfront, and if it meets a predetermined, mutually agreed upon threshold and passes the smell test (I.e. credibility and verifiabilty), you’re free for life. If not, we’re going to f*****g hound you for life and make you so f*****g miserable you’ll wish you were dead.
How’s that for an immunity agreement?
Instead of Immunity, I would be in favor of anything that will unhinge the Obama Regime. It is a ticking bomb scenario where each second that goes by is a second closer to the destruction of America’s Constitution and America. I think this justifies that Lois Lerner should be Waterboarded for the all information she has.
I don’t even want to ask what the Congressional Jail is like. What? No room service? Or no linen napkins.
These DC hacks, just like the writer of this article doesn’t want to
hold anyone accountable for their criminal actions, they just want to
use this as a campaign tool. Same old same old from these hacks.
Only jail time will send the right message to IRS employees who break
the law. Sending more GOP hacks to congress won’t stop this. Only jail time for
IRS employees will.
See Post #37. You were first to call for Waterboarding. I second that call. Because it is in defense of our Constitution, that internationally decreed illegal procedure would not apply. We are fighting for our liberty and the Republican held Congress should join in that fight.
Waterboard her.
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