How Litigating Lost E-mails Works

On July 4, 2014, I wrote an article, “Litigating Lost E-mails,” which proposed using federal judges to compel corrupt bosses to the IRS to force the Obama administration to tell the truth about the “lost” e-mails or face the consequences of lying to federal judges. 

What I proposed was to do what Democrats did forty years ago this month to Nixon.  The case filed against Nixon in United States District Court was decided on May 31, 1974, and the case was argued before the Supreme Court on July 8, 1974.  The unanimous decision (Justice Rehnquist recused himself) was decided barely two weeks later on July 24, 1974.

The political impact of that decision was immediate and seismic.  Fifteen days after the decision, Richard Nixon became the first president to resign from office.  Three months later, Republicans suffered enormous losses, which included not only Congress, but also state legislative races, where Republicans saw the number of state legislatures they controlled drop from 16 to 5, or almost nonexistence.

Two federal judges in the last couple of weeks have issued very plain, direct, and uncompromising orders to the IRS with tight timeframes.  As I noted in my earlier article, there is no good response the IRS can make to these orders.  Judges – really, any judge – deeply resent being lied to with a straight face.  That sort of behavior shows clear contempt for their authority.  There is no reason to doubt for a moment that the absurdly fabricated lies told to Congress by IRS officials will be accepted by these two judges.

What might follow then?  The judges might, sua sponte, find the IRS official involved in direct contempt of court.  These officials could be sent to a federal jail and held as punishment for direct contempt.  The judges might also find the officials in indirect contempt of court, which would mean that the officials had not in good faith complied with an order of the court.  This would mean incarceration until the federal officers comply with the order.  (There is a finite term that would be set at sentencing.)

Would Lois Lerner or John Koskinen spend more than a few days in a stark jail cell with the toothbrush before squealing?  Consider that for these offenses against judicial authority there is no presidential pardon possible.  Lerner and Koskinen are aware of that, because both of them are lawyers.

That brings in a second level of punishment.  Either judge, if a lawyer-witness lies to the court, could disbar the offending witness.  This is not an idle threat.  Recall that President Clinton, while in office, was disbarred for life by a federal judge for exactly this type of arrogant prevarication.

It gets worse for the Obama administration and its toadies.   Koskinen, unlike many presidential appointments, was not confirmed easily by the Senate.  The overwhelming majority of Senate Republicans voted against his confirmation.  Should he be disgraced before the November election, then every Democrat up for re-election in November will have to defend his vote in a divided Senate for a corrupt, incarcerated, and disbarred boss of the IRS.

What of Lois Lerner?  She is not only an active member of the bar, but a past president of the Council on Governmental Ethics Laws, which is specifically committed to areas like integrity by lawyers in government, thorough compliance with Freedom of Information Act requests, and other things that Lerner is clearly ignoring today.  As a final touch of irony, this organization was founded in December 1974 at the Watergate Hotel specifically to prevent the sorts of abuses that Lerner might soon find herself adjudged to have committed.

Republicans can and ought to tie this sort of judicial correction of government abuses directly to Obama’s Nixonian presidency, which is facing precisely the same sort of moral grotesqueries that unraveled Nixon forty years ago.  Congressional Republicans can and ought to demand, before November, that Congress at least censure Obama, Holder, et al. – noting that they are asking less from Democrats in Congress in 2014 than Democrats asked from Republicans in Congress in 1974.

As a final stinging rebuke, Republicans ought to remind America that 1974 also brought home the need to dramatically improve the ethical standards of lawyers and the sanction that could be brought against corrupt government lawyers – reforms that Democrats urged as well as Republicans in 1974.  But in doing this, Republicans ought to also remind voters of what I have noted in past articles: Democrats are, body and soul, the “Lawyers' Party.”   

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