Opinion

Silence of the Lerner: Will ex-IRS official talk?

So Lois Lerner has been held in contempt.

Not by the House of Representatives, which won’t vote on contempt until members return from their Easter break. But by the House Committee on Oversight and Government Reform.

The days between now and this coming full House vote are critical, says Rep. Trey Gowdy, the South Carolina Republican who famously challenged Lerner’s Fifth Amendment claim at her first hearing. For these two weeks represent the best opening since the hearings began for a deal that will get Lerner to tell Congress why and how the IRS was targeting conservative groups.

The likeliest deal would be as follows: Lerner’s lawyer comes up with an acceptable proffer about the information she will testify to; in return, Chairman Darrell Issa (R-Calif.) agrees to move the committee hearing behind closed doors, sparing Lerner the congressional grandstanding that attends public hearings in an election year.

Each side has incentives to come to such an arrangement.

For Lerner, it’s a way to avoid having the House hold her in contempt. Yes, Democrats have produced two dozen scholars who claim Issa didn’t follow the required procedure for a contempt finding, and a federal court might agree. But if it doesn’t, she faces up to a year in the pokey.

Issa too has incentives to accommodate. The last public hearing didn’t go so well, because instead of IRS abuses the story became his clash with the ranking Democratic member, Rep. Elijah Cummings (D-Md.). If Issa can get Lerner to tell Congress what she knows, he’ll have pulled off a victory many thought impossible.

And if Lerner makes no deal and the House ends up holding her in contempt, Speaker John Boehner (R-Ohio) has three ways to go.

The first is the civil route. The big problem here is that it just takes too long: In 2012, the House passed both a criminal and civil contempt resolution against Attorney General Eric Holder for refusing to turn over information related to the gun-running operation known as Fast and Furious. Eventually the civil suit will get to a judge, who’ll decide between Congress’ subpoena and the administration’s claim of executive privilege. But it could take years.

The second is criminal. In this case, the House would refer the matter to the local US Attorney. A former federal prosecutor himself, Gowdy notes that while the relevant statute says the US Attorney “shall” take it to a grand jury, the reality is a prosecutor might decline to do so.

Finally, there’s inherent contempt. This isn’t explicitly noted in the Constitution, but the Supreme Court in 1821 recognized that without the power to hold people in contempt and put them in jail, Congress would “be exposed to every indignity and interruption, that rude­ness, caprice, or even conspiracy, may mediate against it.” In theory, Speaker John Boehner could dispatch the Sergeant at Arms to arrest Lerner, bring her to the House and jail her until the end of the session.

Here again there are risks. The move could backfire if being jailed by a Republican House created sympathy for Lerner. And Boehner can’t be sure some court won’t rule against him, diminishing or taking away the power.

There’s a larger paradox here, too. Certainly Thursday’s contempt vote raises the real possibility of jail time. But the end game isn’t prison stripes for Lois Lerner: The committee vote is meant to concentrate her mind, in hopes of persuading her to provide Congress the information it needs to do its job of holding government accountable to the American people.

Gowdy puts it this way: “There seems to be this notion that these IRS abuses do not really matter unless we can find a direct link to Obama or Biden. But does it really have to involve the president or the vice president to get people to take notice, when the IRS is going after American citizens for their political views?”

The congressman might have gone even further. If an agency as big and coercive as the IRS was indeed acting on its own — targeting Americans based on their political beliefs and using harassment to counter a Supreme Court decision (Citizens United) on campaign funding — surely that would be more malignant for the body politic than an IRS acting at the direction of a White House.

From the start, Gowdy has said Congress has the leverage to get Lois Lerner to talk. Maybe he’s wrong. Maybe Lerner is another Susan McDougal, who went to jail rather than answer a grand-jury question about whether Bill Clinton lied. Maybe Lerner believes what her lawyer tells the press.

But if the gentleman from South Carolina is right, we will likely have our answer some time in the next two weeks.