Use it or lose it. That’s the message for House Speaker John Boehner. If he thinks Congress has the power to arrest Lois Lerner for contempt, now is the time. If he shrinks from sending the sergeant at arms to bring Lerner to the Capitol jail after the full House held her in contempt, he’s weakening his own institution.
And if this case is not worth a fight, what is? The ex-official of the Internal Revenue Service has been ordered to continue testifying in the House’s investigation into whether President Obama’s tax collectors tried to throw the 2012 election by targeting conservative groups. It’s hard to think of a more serious issue.
Lerner started to talk, but when it became apparent how dangerous the situation was, she clammed up tighter than a conch in a mudslide. She cited the Fifth Amendment to the Constitution, which says that no person “shall be compelled in any criminal case to be a witness against himself.”
The House takes the position that she waived her right to plead the Fifth when she started testifying. Whether that ought to be the rule is not so clear, at least not to me. But if the House is going to take that stand and then vote to hold her in contempt, what is the purpose of not treating her accordingly?
Boehner went on Fox News to announce that he was hanging back. He’s handed the matter over to Attorney General Eric Holder. US law says Holder should bring it to a grand jury. But Holder himself has himself been found in contempt in a separate feud with Congress. Talk about asking the fox to guard the chickens.
Best for Boehner to look to precedent. Congress has been asserting its own contempt power since the founding of the Republic. One of the most famous cases was against the editor of the Aurora, the Philadelphia rag that sided with the French in its quasi-war against the United States. Congress held its editor, William Duane, in contempt.
It also decided to jail him, but made the mistake of letting the slippery scrivener scoot to consult with his lawyer. He never returned, and the whole case got lost in the shuffle when the government moved to Washington. Plus, we elected Thomas Jefferson president. In our feud with France, he was a veritable cheese-eating-surrender-monkey.
There’s little doubt that the Supreme Court would uphold the Congress. It certainly did in 1821, when a miscreant named John Anderson tried to bribe Congress. He was held in contempt, and the House ordered the sergeant at arms to arrest him. When the case got to the Supreme Court, it sided with the sergeant, an officer named Thomas Dunn.
Proclaimed the Court: “The power to institute a prosecution must be dependent upon the power to punish.” In the 1930s, an ex-assistant commerce secretary, William MacCracken, was seized by the Senate for withholding evidence. The arrest was sustained by the Supreme Court in 1935, in a ruling written by Justice Louis Brandeis.
Congress won another case, in 1959, when it held a college professor in contempt for refusing to testify before the House Un-American Activities Committee. In 1961, the justices backed up Congress after it held a public housing administrator in Los Angeles, Frank Wilkinson, in contempt for refusing to testify before HUAC.
Nor is the Supreme Court likely to show much sympathy for those who question the motives of the Republican House. That came up in the Senate when, during Vietnam, the Internal Security subcommittee went after an anti-war servicemen’s fund. The high court backed the Senate committee against any interference with its subpoena.
My own view is that the Lerner case is more serious than all of those, including the saber-rattling by the French and the perfidy of the communists. Her testimony is needed to investigate a suspected plot inside our own government to subvert the very democratic process by which the government is chosen.
Here’s a tip for the speaker.
Every congressman of the earlier times had to be as nervous as Boehner is today. But they asserted their powers. Had they not done so, the Court wouldn’t have laid down the precedents that beckon today. If Boehner shrinks from the fight, what justices will be there for Congresses of the future?
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