The case for giving Lois Lerner immunity

Andrew McCarthy at NRO makes an excellent legal and common sense case for granting Lois Lerner immunity from prosecution in exchange for her testimony in the IRS targeting scandal.

In a competent investigation, one designed to find out what actually happened, Lois Lerner would have been immunized months ago. That is, Congress would have voted to compel her testimony by assuring that her statements could not be used against her in any future prosecution — removing the obstacle of her Fifth Amendment privilege against self-incrimination.

The variety of fact patterns that can be investigated is infinite. Still, almost all of them fall into just a few categories of enforcement action dictated by the public interest. Let’s look at two of them.

Sometimes, behavior is heinous but essentially private — i.e., of interest mainly to the people directly affected by the misconduct. In such cases, the priority is to prosecute and punish the wrongdoers, so you obviously resist granting immunity to a culpable party.

In other situations, reprehensible behavior affects the public at large. This is almost always the case when government power has been abused: The gravity of the misconduct transcends the injury to the private parties directly affected. It portends rampant violation of fundamental rights and undermines our trust in faithful execution of the laws. In such circumstances, it is imperative to achieve political accountability and a complete record of what went wrong so that any necessary policy changes can be made. Holding wrongdoers criminally culpable is secondary. Further, even if criminal accountability were a priority, the point would be to identify the highest-ranking wrongdoers — the people who are insulated and cannot be reached absent testimony from their accomplices.

Lois Lerner clearly presents the second situation . . . though that is apparently less than clear to the folks running the House. Asked about the IRS scandal recently, Speaker Boehner declared, “I don’t care who is going to be fired. I want to know who is going to jail!” That’s a good, fiery sound bite for the campaign season, but it’s exactly wrong.

When officials prove unfit for government power, taking that power away is the highest public interest. Even if you’ve deluded yourself into thinking the Obama Justice Department would lift a finger to prosecute Lois Lerner, who cares if she ever sees the inside of a jail cell? What matters is laying bare the entirety of the scheme and finding out how high it goes: Who and what induced her to orchestrate the harassment of conservative groups? Why was the government’s fearsome tax agency placed in the service of the Democratic party’s political needs?

McCarthy makes the point that the House investigation has been inadequate to get to the bottom of the targeting scandal. It's hard to disagree with him. Too many committees, too many tangents that the investigation has taken. Obviously, a select committee would be the ideal venue to get to the truth. Even a special prosecutor would do.

But there has been too much wrangling in the Republican caucus over how best to approach the investiation - too many turf battles. It has slowed the investigative machinery to a crawl and has gotten us no closer to finding out what happened.

Immunizing Lois Lerner would be a good start.