By Ben Barrack
Will Lois Lerner be held in contempt of Congress? If so, will she go to jail? After she pleaded the fifth for the second time yesterday, House Speaker John Boehner (R-OH) seemed to indicate that he would be willing to support Oversight Committee chairman Darrell Issa if the latter chose to go the contempt route, saying, via the Washington Examiner:
“Well, I’ll wait for a report from Chairman Issa about what happened or what will happen,” Boehner said. “But at some point I believe that she has to testify, or she should be held in contempt.”
Whether Boehner realizes it or not, those words are not insignificant when they come from the Speaker of the House. Nearly a year ago, Boehner said he didn’t want to know who was going to resign over the IRS scandal but ‘Who’s going to Jail?’ over it.
If Lerner is found in contempt, Boehner may find himself the only one who can make sure someone does go to jail.
The U.S. Justice Department under Attorney General Eric Holder is extremely corrupt and will not prosecute Lerner. The Oversight Committee has in fact determined that she waived her fifth amendment right during her first appearance before it last year. Despite this, she invoked it again yesterday. To not find her in contempt would only further weaken Congress generally and the Oversight Committee in particular.
The same Committee found Holder in Contempt of Congress in 2012 over not honoring a subpoena for documents in the Fast and Furious case. Right before the vote, President Barack Obama asserted executive privilege and Holder has faced no real consequence. The U.S. Attorney responsible for prosecuting him was also Holder’s subordinate who refused to prosecute his boss; the civil suit is still languishing in some court when it should have skyrocketed to the top of the docket.
Let’s get back to Lerner. If, like Holder, she is found in contempt of Congress, will she avoid suffering any real consequences? In order to avoid a repeat, the House of Representatives must take drastic measures to compel her to reveal what she knows.
Here are three things that could be done, in this order, to get Lerner to spill the beans. Collectively, they require the involvement of three people – House Speaker Boehner, House Sergeant at Arms Paul D. Irving, and Oversight Committee Chairman Issa:
ONE: Introduce the Malik Obama angle into the scandal. This is not tangential; it involves Lerner specifically. Any Congressman can do this at any time (we have confirmation that several know about it). Lerner’s signature is at the bottom of the Barack H. Obama Foundation’s 501(c)(3) approval letter. Evidence is overwhelming that Malik is connected to various terrorist groups and individuals, which would mean he qualifies as an enemy combatant. That Lois Lerner illegally backdated his status by 38 months and in less than 30 days could make her an accessory.
According to the Military Commissions Act (MCA) of 2006, once the threshold of providing material support to terrorists is reached by an individual, that person qualifies as an enemy combatant. If Lerner committed a crime by backdating the tax exempt approval more than allowed by law, it could mean that she committed a crime (backdating) during the commission of another, more serious crime – violating the MCA.
This is why Issa missed such a golden opportunity. Simply introducing this angle into the public discourse would place an enormous amount of pressure on Lerner to spill the beans. To this point – including Issa’s questions yesterday – the focus has been almost exclusively on the targeting of conservatives. It doesn’t matter if Lerner is prosecuted by Holder’s DOJ. The real issue is the explosiveness of these new charges making its way into the public consciousness; that could cause her to finally break. Ideally, this should be done during a public hearing but acknowledging it in the media, press releases, or letters made available to the public would likely be sufficient.
TWO: Find Lerner in contempt of Congress and order the Sergeant at Arms (SaA) to arrest and incarcerate her. Oversight Committee member, Rep. Trey Gowdy suggested this as an option. The current House SaA is Paul D. Irving. Such an action is far from unprecedented. In fact, in one case, a man was arrested and jailed by the SaA for bribing a House member. In modern terms, it might be considered lobbying. In the case, Anderson v. Dunn (h/t to Ray76 at Free Republic), the Speaker of the House ordered the SaA to arrest John Anderson. Later, Anderson sued Dunn for false imprisonment. The case went all the way to the Supreme Court, which found for Dunn. Here is part of the opinion from Supreme Court Justice Johnson, via Washington University Law Review (WULR) (p. 22-25):
That a deliberate assembly, clothed with the majesty of the people, and charged with the care of all that is dear to them; composed of the most distinguished citizens, selected and drawn together from every quarter of a great nation; whose delibera- tions are required by public opinion to be conducted under the eye of the public, and whose decisions must be clothed with all that sanctity which unlimited confidence in their wisdom and purity can inspire; that such an assembly should not possess the power to suppress rudeness, or repel insult, is a supposition too wild to be suggested.
On page 24, the WULR relayed the court’s ruling relative to where the infraction by Anderson took place – in the House. This is exactly where Lerner was found to have waived her fifth amendment right last year. Like Anderson, Lerner is not a member of the House (Article I, sec. 5). Unlike Anderson, Lerner was a top official with a a federal agency that comes under the purview of the Executive Branch, which Congress has the authority to check. Based on the ruling in Anderson, Lerner could be found in contempt and jailed. Unfortunately, such a decision would have to come from a very weak-kneed Boehner.
There will undoubtedly be cries over the inability of the Capitol jail to hold prisoners and that the exercise would be nothing short of theater. Did not Oversight Committee ranking member Elijah Cummings engage in theater while running interference for Lerner yesterday, in an attempt to steal some of the uncomfortable spotlight from her? House Republicans must act without serious regard for such things. It is unprecedented territory when the IRS and DOJ are arms of the President of the United States. Congress must act accordingly. After all, Lerner would constitute one prisoner. Surely, the Capitol police could keep her fed, provide her a cot, and allow her access to facilities.
The Obama administration is all about imagery and using visuals to sway public opinion. It’s time for House Republicans to do the same thing, with the added element of placing additional pressure on Lerner to spill the beans in much the same way that being behind bars prompted James McCord to do the same after Watergate. While McCord was convicted by a much less corrupt Justice Department, Lerner’s actions make him look like a piker. Having her sit behind bars while mulling the severity of the claims against her would likely be very effective.
Anderson is not the only case that applies here. See Jurney v. MacCracken (again, h/t Ray76)
THREE: When it comes to the tax exempt status issued to Malik Obama’s foundation, Lerner is not the only name connected with granting it. There is another name on the approval letter; her name is Renee Railey Norton and she is identified as the “contact person”. Again, we’re dealing with something that the Oversight Committee still has not introduced. For Norton to be questioned by the Committee, the Malik Obama angle to the scandal must be introduced. Imagine if Lerner is sitting behind bars, watching C-SPAN and sees Norton testifying in front of the Oversight Committee, facing contempt of Congress charges if she doesn’t talk about why the Barack H. Obama Foundation was granted tax exempt status. At that point, Lerner may give up the ghost because if Norton spills beans Lois should have spilled, Lerner could be in much deeper trouble than she ever bargained for.
It’s long past time for Congressional Republicans to pick up their game.
You know what they say desperate times call for, right?