On its own, Congress has clear authority to arrest and jail Lois Lerner until she testifies. That is the best way to end the stonewalling about the IRS’ targeting of the Tea Party and other conservatives.
There is no better option.
Nobody expects Attorney General Eric Holder to prosecute Ms. Lerner. His hyper-political Justice Department’s “investigation” of the IRS scandal is an obvious sham.
It would take years if Congress asks the courts to enforce contempt proceedings against Ms. Lerner. We would witness delays and drawn-out court maneuverings that would be to her advantage while frustrating the public’s right to know.
Those approaches would be passing the buck to the executive or judicial branches.
Instead, the House of Representatives should use its inherent and historical power to arrest and confine persons it finds to be in contempt. The Supreme Court has upheld this power; this would not be the first time Congress confined someone to compel them to testify.
Yet most Capitol Hill discussion shies away from even acknowledging that this power exists. This reflects a misplaced timidity among some House Republicans who prefer to avoid political heat. And it reflects most Democrats’ disregard for accountability.
Ms. Lerner showed no such timidity when she supported imprisoning political foes of President Obama. She was not responding to proven wrongdoing; she was describing her unproven belief that conservative non-profits surely must be engaged in illegal politicking. As Ms. Lerner wrote in her email to the Justice Department, “One prosecution would make an impact.”
After Democrat politicians such as Sen. Sheldon Whitehouse, Rhode Island Democrat, pressed the IRS to dig for dirt on Tea Party groups, Ms. Lerner launched the IRS’ demands that the groups turn over mountains of documents. Obviously, she hoped that groups would incriminate themselves somewhere within that avalanche of information.
Ms. Lerner insisted that others tell everything, but she wants to tell nothing. But by making self-serving statements before she clammed up and took the 5th Amendment, she clearly waived her right to refuse to testify.
The authority of the House of Representatives to arrest and detain her is clearly outlined in a report to Congress from the Congressional Research Service. As part of the Library of Congress, CRS provides Congress with its official legal and other research. An April 10, 2014, CRS report states:
“Congress’s inherent contempt power is not specifically granted by the Constitution, but is considered necessary to investigate and legislate effectively. The validity of the inherent contempt power was upheld in the early Supreme Court decision in Anderson v. Dunn [1821] and reiterated in McGrain v. Daugherty [1927].
“Under the inherent contempt power the individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned or detained in the Capitol or perhaps elsewhere.”
This includes the power to confine a witness until they provide the testimony demanded by the House or Senate:
“Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period … until he agrees to comply.”
In the McGrain case, the Supreme Court upheld this power and noted that each house of Congress may exercise it independently of the other:
“Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete, so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period, the power of inquiry, with enforcing process, was regarded and employed as a necessary and appropriate attribute of the power to legislate — indeed, was treated as inhering in it. Thus, there is ample warrant for thinking, as we do, that the constitutional provisions which commit the legislative function to the two houses are intended to include this attribute to the end that the function may be effectively exercised.”
The only limitation is that confinement by the House must end when the term of House members ends. However, it could be renewed by the subsequent Congress.
The House should take this step with Ms. Lerner, locking her up until she testifies. She was eager to punish others but now plays games to avoid punishment for herself.
Delaying tactics have been an advantage for Ms. Lerner and the Obama administration on the IRS scandal, just as on other scandals like Benghazi and Fast and Furious. That time advantage would be reversed, however, if Ms. Lerner found herself confined while things proceeded.
She could petition a court for a writ of habeas corpus, launching an uphill challenge to the authority of Congress. But time would be on the side of the House, not Ms. Lerner, because she would be confined in the meantime. The opposite would be true if the House petitioned a court to be the enforcer of Congress’ subpoena of Ms. Lerner. In that case, Ms. Lerner could and certainly would use delaying tactics.
It would not be advisable, however, for the House to use an arrest-and-confine approach toward Mr. Holder, although he was held in contempt of Congress for failing to produce documents in the Fast and Furious gun-running scandal. Holder as attorney general has a phalanx of government bodyguards who could challenge his arrest by other government agents. Such a confrontation would be unwise and would raise unique legal issues.
There is no such barrier regarding Ms. Lerner, a private citizen who is now separated from the IRS.
Expecting either the attorney general or a court to be the enforcer against Ms. Lerner would show the House commitment to accountability is soft. The House can and should use its own power to arrest and confine her, just as courts commonly do with other witnesses to compel testimony.
The mainstream media ignore the ongoing IRS scandal rather than digging for new disclosures. The president proclaims there is “not a smidgen of corruption” involving the IRS. It would be fascinating to learn how testimony from Lerner could change Obama’s bragging.
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