Paul L. Caron

Sunday, March 30, 2014

The IRS Scandal, Day 325

IRS Logo 2Washington Examiner editorial:  Lois Lerner Could Go to Jail in Contempt Clash:

This may come as a shock to Lois Lerner, but the House of Representatives has the authority to jail her unless she changes her mind about refusing to answer questions about her role in the IRS scandal. Essentially, what is required for that to happen is for a House majority to vote for a motion holding her in contempt and House Speaker John Boehner to then direct the House sergeant at arms to arrest and confine her. Under the Constitution, the House can do that under its “inherent contempt” authority, which was initially exercised in 1795 during the First Congress and on multiple occasions thereafter. Lerner could be held until January 2015 when a new Congress is seated, which could issue another subpoena and throw her in the clink again if she still balks at testifying. 

According to a 2012 Congressional Research Service report, inherent contempt has the unique advantage that it doesn’t require “the cooperation or assistance of either the executive or judicial branches. The House or Senate can, on its own, conduct summary proceedings and cite the offender for contempt.” The prospect of an eight or nine month stretch in the congressional slammer might have a sobering effect on Lerner. On the other hand, neither the House nor the Senate has used this authority since 1935, according to the CRS report, because the process can be “unseemly” and time-consuming.

Plus, Lerner may be on solid ground in thinking Boehner and other House Republicans don't have the political spine to jail her. But just as the South's “massive resistance” in the 1950s to racial integration was doomed to fail because it could not be sustained over time, the Obama administration's comprehensive refusal since November 2010 to cooperate with legitimate congressional oversight by House committees may be sowing seeds of frustration that eventually undercut Lerner's calculation of how long she can keep silent. Chairman Darrell Issa of the House Committee on Oversight and Government Reform, and Rep. Jim Jordan, who heads that panel's oversight subcommittee, are patient individuals but perhaps not that patient.

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Publius Norvus,

Congress does have the contempt power -- called "inherent contempt." See Wikipedia entry here.

I don't think Issa and his minions will use it. Nor do I think they will use the court procedure for contempt. They can better manipulate their base by letting Ms. Lerner's exercise of her constitutional Fifth Amendment privilege stand. And, by not giving her immunity, they can continue to claim or insinuate that she is protecting Obama who is the real target of all their machinations. Should they try her in whatever forum they can (other than the forum of opinion of their base, as to which that jury is rigged), a better version of the truth will come out and the truth is not on their side.

Jack Townsend

Posted by: Jack Townsend | Apr 1, 2014 5:45:03 AM

It obviously will come as a shock to the Examiner that the House of Representatives, unlike the House of Lords in Merrie Olde England, does not have the authority to jail Lois Lerner or anyone. The House can take its subpoena to a federal district court and try to enforce it. That is all. The courts will decide whether it is a valid subpoena, whether Lerner properly and effectively invoked her 5th Amendment right against self-incrimination, and whether to enforce the subpoena. But perhaps the Examiner should ask itself why Chairman Issa and his merry band don’t give Lerner immunity. After all, hasn’t Issa repeatedly stated that Lerner is covering up for bigger fish? That’s how you get to the bigger fish, if that’s really where you want to go.

Posted by: Publius Novus | Mar 31, 2014 8:49:29 AM

At least if the House pursued the "inherent contempt" process, there would be a modicum of a trial. The "jury" -- members of the House -- will be politicized but Americans know what a trial is and when it is being conducted fairly and when a "jury" result is fair. If Issa wants to shine a light on Lerner's actions, have at it. He and his majority on the committee will be in the dock in the eyes of the American people and will be judged just as surely as Ms. Lerner is (and probably a lot more fairly than Ms. Lerner is by the Republican House).

It is one thing to hide in the shadows of being an investigator. Investigators don't have to be fair (but even then the public can perceive when they are unfair -- as Senator McCarthy found out.) It is another thing, however, to conduct a fair trial that the public will perceive as fair.

Maybe someone as decent and honorable as Joseph Welch will rise up to shine not just a light but a spotlight on Issa and his partisans. For those who are too young to have much memory on this type of poisoned environment, see

Have at it Mr. Issa and Mr. Boehner. Democrats would appreciate that all the way to elections.

Posted by: Jack Townsend | Mar 30, 2014 3:34:07 PM

Issa and Jordan are far too patient. If the GOP were not so hung up on their chairmanship prerogatives, this clown show--and Benghazi--would be in the 9th inning by now instead of being stuck in batting practice.

The glacial pace of these investigations is inexcusable and is directly related to these chairmen wanting the spotlight and glory. Unfortunately, Obama is simply going to run out the clock.

Posted by: PD Quig | Mar 30, 2014 2:32:47 PM

Actually, it is Eric Holder, official Congress contemptor, that currently should be in the House hoosegow. Of course, the House hoosegow has it's own cash check post office, golf course and 19th hole speakeasy.

Posted by: Mark McNeil | Mar 30, 2014 1:27:15 PM

Forget it. TheHouse GOP doesn't have the spine! We, the public may deserve the action but our "representatives" have long since stopped caring about anything but themselves.

Posted by: Fred17 | Mar 30, 2014 1:15:54 PM

It is my impression that Republican congress is holding off on compelling testimony with idea of charging Lerner with a crime. Possibly a Republican President for a different Justice Department.

Posted by: James | Mar 30, 2014 10:34:19 AM

Can someone explain how Ms. Lerner and the other named IRS executives (numbering less than ten) can generate "millions" of emails over a several year period? I don't see why it is so difficult to meet the House's request for the redacted copies of the emails of Ms. Lerner et al.

Posted by: Elmer Stoup | Mar 30, 2014 10:21:49 AM

Do it! Do it! Do it!

Posted by: Bob Ellison | Mar 30, 2014 8:05:08 AM