Why Lois Lerner Should Be Granted Immunity

National Review ^ | 5-10-2014 | Andrew C. McCarthy - Commentary

[smoothsailing]

May 10, 2014

Why Lois Lerner Should Be Granted Immunity

It’s the only way for the House to get to the bottom of the IRS abuses.

By Andrew C. McCarthy

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.

[GeronL]

Immunity?

She will lie through her teeth with immunity

[Hoodat]

Grant her immunity so that she can lie with impunity? No thanks.

[MaxMax]

IMO, it's not just the Administration. It's all those inside our Gov willing
to corrupt our system and are being protected.

When Bush took office we wanted him to clean house and he didn't. We're now paying the price.
The Dems are Treasonous through and through. They have sold out law and order for power.
I still remember him being hounded for firing a few people in the Gov to place his own
appointments. The MSM/Dems won by forcing him to stop the practice though intimidation.

[itsahoot]

Immunity deals for little fish get cut when they are able AND willing to help take down big fish. There is no evidence the Lerner is either able OR willing.

Either way she will never serve a day and we all know it. She will continue to draw and exorbitant pension and benefits that will maintain her unearned life style.

[dalereed]

Immunity never, jail her immediatly for contempt!!!!

[jonrick46]

President G.W. Bush was not up to the task of fighting the war on terror and the den of jackals in the DemonRAT Party. For him, the DemonRATs were a distraction which he chose to ignore. I was so disappointed in him for not grabbing that window of opportunity to clean house after the Clinton Regime. I was also disappointed that G.W. failed to have enough spine to take on the mountain of criticism heaped on him by the Left. It is these same agents of the Left that are taking this country down with the Zer0 as their point man.

[Foundahardheadedwoman]

‘if they could prove it’...You are assuming that another source of info would either be found or come forward. These are true believers and as such we have seen that they will deceive as a matter of course and why would you put your life on the line to come forward when you can be gotten to even in prison. Screw immunity, put her butt in jail till she talks, as far as I am concerned the damage she has done would justify waterboarding. Enough of this bull, time to shove her into a cold clammy cell and see how she feels about talking in a couple of months. Cutting off her pension is also possible till the investigation is over, see how long her lawyer hangs in with no pay. Take off the gloves, they have.

[ComputerGuy]

If granted immunity, she’ll be a dead gal walking.

[Cowboy Bob]

Lois Lerner should not be granted immunity simply for the fact that she is a smug little A**hole.

Convict her and then offer some reduced time off her sentence if she will name names.

She should also lose her federal pension and health benefits. That, I think, will hit her the hardest.

[cynwoody]

You give her blanket immunity and she takes the fall for everything, insulating the Administration.

Presumably, that would entail her lying.

If she gets caught doing that, she goes to the can, blanket immunity or not. And likely for longer than if she'd just plead guilty with no immunity.

That's the beauty! She stays out of the can, but only at the cost of destroying those she believes in!

[nathanbedford]

If the House really wants to get to the bottom of the IRS abuses

And there is the rub, the House or at least The Speaker and Eric Cantor and the rest of the Republican establishment do not want to get to the bottom of the IRS abuses because they themselves are threatened by The Tea Party and are not opposed to seeing it suppressed.

Andrew McCarthy makes a good point that the administration and the IRS are proceeding to codify that which they're being investigated for even as The Republicans in the House dither. Boehner knows they are doing this and one can only draw the conclusion that his passivity arises out of his selfish interest.

Some posters have misconceived the purpose and function of offers of immunity following proffers. The declarant must have enough red meat to offer the investigators to entice them to grant immunity but Lois Lerner has no incentive under the circumstances as the Republicans have created them to make such a proffer because she is under no real threat. A special committee, which Boehner stubbornly declines to appoint, would by now presumably have created a list of crimes supported by sufficient evidence to make Lois Lerner very frightened that she would be prosecuted beginning in January 2017 if she does not get a pardon from the Bamster.

You need a special committee on the IRS scandal for the same reasons you need a special committee for the Benghazi scandal and Boehner is culpable not just for negligence but, I believe, for misfeasance for failing to appoint such committees in a timely manner.

[Candor7]

McCarthy writes a great article here. I agree with him and was very suprised that Lerner was not granted amnesty, in the interest of correcting IRS abuse of power.

I was under the impression that Lerner was offered immunity but refused it, instead cooperating with the Dept. Justice investigation, which is the REAL REASON why she is now held in contempt.She cooperated with teh Dept. Justice, but not with the Oversight Comittee.

I believe that Lerner is a criminal. The IRS has hung Lois out to dry, and so they will roll up the web of her co conspirators with her.The real problem is getting at the White House staff involved in the crime.They will never be discovered in time to do something about them at this rate.

[cynwoody]

Immunity?
Oh hell no!

Keep your eye on the ball.

Lois Lerner doesn't matter.

Nor do the ideals of all those Americans of youth and of color and of guilt who put Barack Obama in office. Twice. I want them demoralized to the point of apathy. If they drop out of the political process in disgust and disillusionment, that is true progress!

I want their hero Obama and their ideals trashed and disrespected!

Letting Lois walk is a small price to pay if it enables that. (Plus, she'll know it 'til her dying day.)

[pepsionice]

Agreed. She shouldn’t require any immunity. The minute she accepts it...it really changes the public perception of her episode, and takes the news media down three or four notches.

[gusopol3]

the Republican establishment do not want to get to the bottom of the IRS abuses because they themselves are threatened by The Tea Party and are not opposed to seeing it suppressed.

That has become quite clear , though I wouldn't have believed it a year ago. Will the attitude change now that republican primary season is ending?

[PGalt]

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.

GESTAPO

GET THEM ALL

[ripley]

Subversive junior-high-schoolers, elected by other subversive junior-high-schoolers, are running the show and have made their own immunity by way of their close-to-the-shoulder goose-stepping.

The time seems to be ripe for their very own
Reichstag fire.

IMHO

[Oldeconomybuyer]

Bookmark

[VRW Conspirator]

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.

Not an expert on this, but if there is someone else who can be prosecuted, then Lerner is vulnerable.

[Don Corleone]

You ONLY grant immunity if you know in advance what the testimony is going to produce. Betting on the “come” is a fatal error.