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ISTOOK: Quit wasting time — The House should arrest Lois Lerner until she testifies

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Lois Lerner should be arrested by the House of Representatives and confined until she testifies in full about the Internal Revenue Service scandal. That is the only viable way to enforce the contempt of Congress approved in early May.

Anybody who believes the IRS' cover story about lost emails should know how improbable it is: It's more likely that you could win every Powerball jackpot ever awarded than that computer crashes caused the loss of all the subpoenaed emails connected to the IRS scandal.

That's why it's overdue for the House to get serious.

Instead of using its authority to arrest her, the House has passed the buck down into the bottomless pit of Attorney General Eric Holder's Department of Justice. It's the same bottomless pit that swallowed Ms. Lerner's emails. It also swallowed the emails of half a dozen other key IRS workers who participated in stifling tea party groups prior to President Barack Obama's 2012 re-election campaign.

The fact that other people's emails also are missing is the proof that nobody should believe Ms. Lerner's emails were lost by accident. House Ways and Means Committee Chairman Dave Camp described this gaping problem in a statement after the IRS revealed that it could not honor his subpoena:

"In addition to Lois Lerner's emails, the IRS cannot produce emails from six other IRS employees involved in the targeting of conservative groups. One of those figures is Nicole Flax, who served as chief of staff to Steve Miller, who at the time of the targeting was Deputy Commissioner … The timeframe for when Ms. Flax's emails are purportedly unrecoverable covers when the Washington DC office wrote and directed the Cincinnati field office to send abusive questionnaires … Ms. Flax was a frequent visitor to the White House."

What are the odds that seven workers — not just one — would lose their emails to a computer crash? The IRS has about 90,000 employees. So for a select seven to suffer such a crash, the odds are about 1 in 478-decillion. Put another way, it's 1 in half-a-million trillion trillion. It's like finding one particular atom among a group of 600 people. You are far more likely to win the Powerball jackpot every time it's awarded.

Math majors can quibble over the numbers, but the point is clear: These things don't happen by coincidence.

The IRS and the White House have ample resources to continue stonewalling Congress for years. But good investigators know the importance of bringing legitimate pressure on the key figure, namely Lois Lerner.

Ms. Lerner was aggressive in proposing that tea party participants be prosecuted, even bending or breaking the law when she forwarded over a million pages of IRS documents to the FBI (including confidential material) in hopes she could send others to prison. Nobody should hesitate to throw the book at her.

Supreme Court rulings have explicitly upheld how a single house of Congress can enforce contempt findings by arresting and confining offenders until they purge themselves of contempt by testifying in full. It's the same remedy that courts employ with recalcitrant witnesses. If Ms. Lerner claims that she retains Fifth Amendment immunity, despite her clear waiver, it's her responsibility to apply to a court for a writ of habeas corpus, as others have attempted when arrested for contempt of Congress.

There is no other good and timely way to proceed.

The odds are tiny that seven key people's emails all were lost due to computer crashes. The odds are even tinier that the hyper-political A-G Eric Holder would actually and effectively prosecute Lois Lerner for contempt of Congress or any other offense.

It's overdue for Congress to arrest Lerner and to confine her until she testifies fully and truthfully.

About the Author
Ernest Istook

Ernest Istook

Ernest Istook spent 25 years in public office, including 14 years in Congress. He was rated one of the top 25 conservatives in the U.S. House of Representatives. Then was a Heritage Foundation fellow and a fellow at Harvard’s Insitute of Politics, where he led a study group on Propaganda in American Politics Today.

Now as a radio host and ...

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