In the midst of the well-deserved fervor over the IRS’s "loss" of Lois Lerner’s emails during a crucial two year period, one other important issue has gone unnoticed – why hasn’t the U.S. Attorney for the District of Columbia acted on the House of Representatives's contempt citation of Lerner?
At the first hearing held by the House Oversight and Government Reform Committee in May of 2013, Lerner declared that she had done nothing wrong and then asserted her Fifth Amendment privilege against self-incrimination, refusing to answer any other questions from the committee.
At her second hearing on March 5, 2014, she once again asserted the Fifth Amendment, despite the fact that her attorney later admitted she had already given the Justice Department a “lengthy statement.” Under the applicable rule in the District of Columbia, a witness who voluntarily speaks to the government is considered to have waived the Fifth Amendment privilege and cannot reassert it in a subsequent proceeding.
As a result, on May 7, the House of Representatives voted 231 to 187 to hold Lerner in contempt for her “failure to comply with a congressional subpoena.”
On May 8, the Clerk of the House sent a certification of the contempt citation to the U.S. Attorney for the District of Columbia, Ronald C. Machen, Jr., who was nominated by President Obama in Dec. 2009. Under federal law (2 U.S.C. §194), it is Machen “whose duty it shall be to bring the matter before” a federal grand jury for action. Notice that the federal statute uses the word “shall,” not “may.” In other words, Machen has no discretion in the matter but is obligated by federal law to present the House’s contempt citation to a grand jury.
That was confirmed in a 1940 decision by a federal court in the District of Columbia in Ex parte Frankfeld in which the court held that the U.S. Attorney “is required, under the language of the statute, to submit the facts to the grand jury.”
Similarly, in 1983 in U.S. v. U.S. House of Representatives, the federal court held that once the contempt citation is delivered to the U.S. Attorney, he “is then required to bring the matter before the grand jury.”
What can the grand jury do about it? Under 2 U.S.C. §192, Lerner could be imprisoned “for not less than one month nor more than twelve months” and fined up to $1,000.
It has been a month and a half since Machen received the contempt citation. Sources in the House tell us they have received no response from his office.
Will Obama’s political appointee actually follow the law and present a federal grand jury with the contempt citation of Lois Lerner for refusing to answer questions about the IRS going after political opponents of President Obama? The statute and the courts have made clear that this is not an option: he is required to do so under federal law. So why hasn’t he already done it?
Unfortunately, as we outline in our new book, “Obama’s Enforcer: Eric Holder’s Justice Department,” lawlessness and an unprecedented contempt for the rule pervades today’s Justice Department. What drives Attorney General Eric Holder and his political subordinates is politics, ideology, and loyalty to Barack Obama, not the interests of justice. They have bent, twisted, ignored, and broken the law on numerous occasions as we document.
When the U.S. Civil Rights Commission subpoenaed Justice Department lawyers to obtain their testimony in its investigation of the improper dismissal of the New Black Panther voter intimidation case, DOJ didn’t just refuse to enforce the subpoenas – the lawyers were told to ignore the subpoenas and not comply with them. If potential witnesses had ignored a Justice Department subpoena, they would have quickly found themselves in jail as prosecutors moved against them for contempt.
When the House of Representatives found Eric Holder in contempt on June 28, 2012 for refusing to provide information about Operation Fast & Furious, the most reckless law enforcement operation in the Department’s history, Machen refused to comply with Section 194 – the contempt citation was never presented to a grand jury.
Perhaps in Lerner’s case, Machen and Justice Department prosecutors will actually live up to their professional obligations and ethical duties to comply with the law. But excuse us if we have our doubts based on their prior history, a history that is an embarrassment to the prior high traditions of professionalism and nonpartisanship of the Justice Department.
This is excerpted from the new book by John Fund and Hans von Spakovsky “Obama’s Enforcer: Eric Holder’s Justice Department” (HarperCollins/Broadside June 10, 2014).
John Fund is a columnist for National Review. Follow him on Twitter @JohnFund.
Hans A. von Spakovsky is a former Justice Department official. He is the co-author, with John Fund of "Obama's Enforcer: Eric Holder's Justice Department" (Broadside/HarperCollins 2014). He is Manager, Election Law Reform Initiative and Senior Legal Fellow at the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation.