In this weeks 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 Houses IRS probe is floundering.
Ironically, this happens just as the chambers 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 committees narrow subject-matter jurisdiction (judiciary, budget, education, reform, etc.) is the closest legislative analogue to a grand jury.
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The IRS investigation, to the contrary, remains mired in Capitol Hills labyrinth of committees and subcommittees. To be sure, some important information has been uncovered. But the case is languishing. Indeed, during the Houses 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.
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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 dont care who is going to be fired. I want to know who is going to jail! Thats a good, fiery sound bite for the campaign season, but its exactly wrong.
When officials prove unfit for government power, taking that power away is the highest public interest. Even if youve 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 governments fearsome tax agency placed in the service of the Democratic partys 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 Committees favor, would not get her any closer to answering questions at least not for a long time.
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But wait, you say, if we immunize her, we cant prosecute her. My first impulse is to say, So what? If she testifies truthfully and gives a full account of what happened, well 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. Lets find out what she knows and advance the publics 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?
