Lois Lerner and Non-Conspiracy Conspiracy

On Friday, September 8, 2017 -- just before the weekend -- the DOJ announced that it would not prosecute Lois Lerner for her part in the IRS-Tea Party scandal.

Evidence of Lerner's guilt is overwhelming. As Peter Roskam (R, Il), chairman of the House Tax policy subcommittee, stated in response to the DOJ's declination,

The decision not to prosecute Lois Lerner is a miscarriage of justice. On top of Ms. Lerner’s actions against taxpayers -- denying tax-exempt status to groups for political gain and failing to protect taxpayer information -- the Department’s response blatantly ignores our most troubling finding: that Ms. Lerner intentionally misled federal investigators in a flagrant violation of the law. This is unacceptable and Ms. Lerner must be held accountable. Our democracy is injured when those who taxpayers entrust with great authority ignore the law to advance their own political agenda without repercussion.

Yet the DOJ letter, signed by a Stephen E. Boyd, claims that after having reviewed the matter, that "reopening the investigation would not be appropriate based on the available evidence," specifically focusing on the lack of evidence of intent to discriminate.

First, let's take a look at what the DOJ is basing its conclusion on. One might simply say it is policy -- and that is not incorrect. This appears not to be a law-driven conclusion, but one resulting from the exercise of "prosecutorial discretion." Yet let's put that aside. The DOJ does point to a legal argument: that of intent.

But it is a very specific and indeed new-fangled intent that they imply. It is amusingly reminiscent of what was said in Hillary's defense regarding her (intentional) failure to safeguard of the nation's secrets.

To state the thinking behind the DOJ's position: there is no evidence that Lerner and others in the IRS in their actions and communications with one another consciously, overtly and intentionally conspired to commit a crime; neither is there evidence they as individuals consciously and overtly set out to commit a crime.

It is true there are some crimes which require a high level of intent -- but most require merely general intent, which can be inferred from the act itself. And intent can be proven also by acts committed after the crime itself, such as the destruction of email.

Yet what is important here is that Lois Lerner and doubtlessly so many others in the IRS thought that their discrimination against conservative groups was moral, was needful, was good, and was the opposite of an immoral and illegal act.

This kind of situation lends itself to what can be called a nonconspiratorial conspiracy. While strictly speaking, conspiracy is a specific intent crime, when a number of people believe some contemplated course of action is good, they do not necessarily have to communicate their intent to take that action. Thus, these offensive DOJ officials are coreligionists, not coconspirators; they do not have to conspire since they collectively have already taken their decision.

This may explain how, as a body, the IRS turned against certain American citizens in the IRS-Tea Party scandal. The blow to the Republic that the IRS delivered can partly be evaluated by remembering that one of the impeachment counts against Nixon was that he purportedly endeavored to use the IRS to discriminate against political groups. Even the seeking was thought to be a high crime and misdemeanor.

But what of the DOJ, especially since this is now Session's DOJ? What is their motivation? Judge Anthony Napolitano posited that they are acting to protect people that had worked at the DOJ before so that they would in turn be protected. Further, even the DOJ in its letter implied that many of the people involved in the decision not to prosecute Lerner were the same ones who had declined to prosecute under Obama and Lynch.

With respect to Judge Napolitano, he is wrong in regard to the motivation of the DOJ officials. The DOJ officials of the Obama era are not in legal jeopardy. So what is afoot?

The present-day, Sessions-DOJ, officials and Lerner and the other culpable IRS officials are coreligionists. As French polymath Gustave Le Bon wrote over 100 years ago, certain ideas have "invaded the entire field of their understanding," and their impulses "assume a peculiar form which I cannot better define than by giving it the name of a religious sentiment." (Le Bon, The Crowd, 37)

(Yes, it is a religious sentiment at the base of it all. While we owe a debt to Patrick Buchanan for coining the term "cultural war," [James Ciment, Social Issues in America, 173] a mere cultural difference neither explains the reason such a phenomenon exists, nor its vehemence.)

This sufficiently explains the DOJ's action. After all, is it discrimination to discriminate against the deplorable? It seems not.

That would be bad enough. But the real problem is that these people are not only entrenched in "deep state" positions, but that they are not made to be subordinate to officials elected by those who hold views which are not in line with theirs.

This is possible, first of all, because of a vacuum. Despite the fact that in the United States the executive is unitary, a very aggressive left-wing dominated media would have it otherwise, and has been driving this part of its agenda forward for years. Hence the president and his cabinet are very hesitant to do that which they must constitutionally do: direct the activities of their underlings, especially in regard to policy decisions.

(Even the lamentable Comey admitted that the president has the power to direct investigations. Indeed, we have a unitary executive because unless the elected president is in control of unelected officials, then we can be assured those unelected officials will be in control of us and, indeed, completely beyond our control.)

But the second reason for the insubordination is the inner conviction of the subordinates that their policy views are not supposed to be subordinated to those of the elected president and his top lieutenants. This is both because those views are religious in nature and because it is certain these subordinates believe that indeed the executive must not be allowed to be unitary.

Of course, this will be demonstrated predominantly when the chief executive is of the opposing party. Otherwise, all is well. Meetings can take place on tarmacs, investigations will be called "matters," classified and other government documents can be taken into personal possession, the names of persons swept up in surveillance can be unmasked and even leaked to the press, and the general refrain is "we will see no evil."

What are we to do?

First, we must reject such risibly disingenuous assertions as contained in Assistant Attorney General Stephen E. Boyd's letter, which fly in the face of all the obvious facts: to wit, that in relation to the Lerner case,

I assure you that the Department has carefully studied the law [!!!], given the evidence the utmost consideration, and thoroughly reviewed the prior investigation from an objective perspective.

Note that this is Boyd's personal assertion. He now owns it. But let us not allow him and the rest of them to lull us into believing that they did indeed acted objectively -- this is the department of the tarmac, let us remember.

Secondly, we must insist and demand, publicly, that the only elected official in the entire executive branch -- the president -- act to control his underlings. (Some have begun to do so.) When he does act to control them, we must support him -- publicly -- vigorously (and peacefully).

It is only in this manner that we will repair the damage done to our constitutional structure and to the idea of equality before the law.

We must never give in temptation: we must not give up our freedom so as to be taken care of by some banal inquisitor.

As for this unfortunate assistant attorney general and his like, where do they find these guys?

The author is a former law school dean and a former FBI agent, awarded the National Intelligence Medal of Achievement (NIMA). He was also chief legal counsel to the president of the parliament of Lithuania.