WHAT IF HOUSE SERGEANT AT ARMS PAUL D. IRVING ARRESTED LOIS LERNER?
This past Thursday, the House Oversight and Government Reform Committee voted 21 to 12 to hold former Director of the IRS Tax Exempt Organizations Division, Lois Lerner, in contempt of Congress. The contempt resolution reads:
Resolved, That because Lois G. Lerner, former Director, Exempt Organizations, Internal Revenue Service, was found by the Committee to have waived her Fifth Amendment Privilege, was informed of the Committee’s decision of waiver, and continued to refuse to testify before the Committee, Ms. Lerner shall be found to be in contempt of Congress for failure to comply with a congressional subpoena.
Resolved, That pursuant to 2 USC Sections 192 and 194, the Speaker of the House of Representatives shall certify the report of the Committee on Oversight and Government Reform, detailing the refusal of Ms. Lerner to testify before the Committee on Oversight and Government Reform as directed by subpoena, to the United States Attorney for the District of Columbia, to the end that Ms. Lerner be proceeded against in the manner and form provided by law.Resolved, That the Speaker of the House shall otherwise take all appropriate actions to enforce the subpoena.
It is likely that the full House will also vote by a majority to confirm the Committee decision holding Lois Lerner in contempt of Congress. After that happens, what comes next?
Under House precedent, if Lerner is held in contempt by the full House, the Sergeant at Arms for the House can be dispatched by the Speaker of the House to arrest her and bring her to the floor of the House. She can then be asked by the Speaker to answer the charges brought against her by the House and, thereafter, be subject to punishment that the House may dictate (usually imprisonment to coerce her into testifying).
Under the Contempt resolution adopted by the House Oversight and Government Reform Committee, the Committee is asking for a likely ineffectual means to address Lerner’s contempt. The Committee has resolved to refer Lerner’s case to the United States Attorney for the District of Columbia, but that attorney, Ronald C. Machen, Jr., is an Obama appointee and will likely refuse to prosecute Lerner.
Could the full House follow a different enforcement approach that is not toothless? Yes, it could, and it should.
Congress could sue Lerner in a civil action, seeking an order compelling her to testify before the Oversight and Government Reform Committee. That option is unattractive because civil suits of this kind take years to come to full fruition.
The best option, one not used for 75 years, but supported by no fewer than four Supreme Court decisions, is for Congress to act directly, relying on its inherent contempt power to arrest and incarcerate Lerner. That is the most expeditious way to impose a sanction for her contumacious refusal to testify. How would that work?
If the full House holds Lerner in contempt, House Speaker John Boehner could then direct the Sergeant at Arms, Paul D. Irving, to arrest Lerner and bring her to the House floor. She would then be asked to answer for the charges. When she again refuses to testify, she could be sentenced by that chamber to imprisonment on property of the Capitol for the remaining term of Congress (and subsequent terms if those new Congresses so voted).
Where could Lerner be detained? Contrary to the belief of some, there is no jail cell in the Capitol building itself. Instead, there is a holding cell at the Capitol Police Department on 119 D Street, N.E. Lerner could be sent there. Congress detained one person held in contempt at The Willard Hotel a short jog from the White House (not bad digs for Lois, and she would be nearer friends Barack and Michelle than if kept in the Capitol Police lock-up). I would much prefer that they save the taxpayers that big fat hotel bill by choosing a less expensive venue, like a DC area Motel 6.
Congress can also fine Lerner a set amount for every day that she continues to refuse to testify; that would be a great way to recoup the undeserved retirement pay she is receiving from the IRS.
Chances are, however, that the fickle members of Congress will wimp out on us, pass the buck to U.S. Attorney Machen, who will ignore the request for prosecution for a time and then refuse to prosecute, allowing Lerner to get off scot free.
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