Litigating Lost E-mails

Obama seems to think that stonewalling Congress regarding the hidden e-mails that obviously incriminate his toadies at the IRS is a winning strategy.  The leftist establishment media is ignoring the scandal.  The House of Representatives has already found Lois Lerner in contempt, a stark and direct condemnation, yet the arrogance of Obama’s flacks remains untouched.

What can the House of Representatives do about this mess?

Consider what Obama’s minions wish us to believe.  First, no one in the administration has asserted that House investigating committees have no right to the e-mails.  No right of privilege has been claimed.  Obama and his pals agree, directly or by acquiescence, that the House of Representatives has the right to review these e-mails.

Second, the Obama administration is telling Congress and the world that it is complying in good faith with the House committee subpoena to produce these e-mails.  That is patently absurd, of course, but as long as Obama can present this as a partisan tussle between a Republican House of Representatives and his Democrat administration, he has just enough wiggle room to continue to maintain that he is complying fully with all the House of Representatives is requesting.

What can House Republicans do about all this?  The lawsuit by Speaker Boehner provides a wise path: bring in the federal judiciary, have federal judges act as de facto arbitrators of the issues, remove the argument from a partisan tug-of-war, and bring in that beloved child of leftism, the federal bench.

How might this work?  Seek an extraordinary writ to compel the director of the IRS to produce the missing e-mails and ask the Supreme Court to act on this writ.  The Supreme Court could, of course, deny issuing the writ, or it could remand a decision on the writ to a lower federal court, but the recent stinging decisions by the Supreme Court against Obama's overreaching and contempt for constitutional order suggests that the writ might be issued.

Indeed, if the court considers the writ, it is hard to say why the writ would not be issued.  Obama’s lawyers would not go into court alleging that the House of Representatives had no right to the e-mails.  His lawyers would be telling the Supreme Court, instead, that the IRS had fully compiled with the subpoena.

Everything would then hinge on whether this argument to the Supreme Court is in good faith or not.  In such a hearing, all the absurdities, all of the impossible coincidences, all the smirking lies would be brought before justices who are unaccustomed to lawyers arrogantly telling them childish fabrications.  These justices would then be able to interrogate those who have been having fun committing perjury to a House committee. 

Given this current attitude by the high court towards Obama’s duplicitous behavior, it is likely that the Supreme Court would find that the Obama administration is not acting in good faith to produce the e-mails.  The court might then issue an order compelling officials to produce the records or be found in contempt of court.

Even worse for Obama’s credibility, considering that the most recent Supreme Court slam of Obama’s overreaching was a 9-0 decision, with one of the most leftist justices, Stephen Breyer, writing the opinion, it is also likely that this could be a unanimous decision, with another respected leftist judge like Ruth Bader Ginsburg writing the court’s opinion.

The political impact of such a Supreme Court ruling would be stunning.  Sock puppets like Harry Reid and Nancy Pelosi could respond only by attacking the court itself – and, if a leftist judge wrote the opinion, attacking that justice directly. 

Forty years ago this July, the Supreme Court heard arguments and later in the same month issued a unanimous decision against a sitting president in a case involving presidential compliance with a congressional subpoena.  The opinion was written by a justice appointed by that president, a justice considered to lean toward the president’s party and ideology. 

The impact of that Supreme Court decision against President Nixon, coming a few months before Nixon’s second midterm election, was crushing.  Those Republicans who had stood by their president suddenly had nowhere to go and nowhere to hide.  This is a winning path – the needed tactic to unravel this wildly corrupt presidency.

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