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 sagelyobserves, 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.
A version of this piece previously appeared on National Review Online.