- - Tuesday, April 22, 2014

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.”

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