Second look at immunity for Lerner?

I’ve been opposed to the idea of offering any sort of immunity to Lois Lerner since this entire brouhaha erupted, and I also opposed the idea of recognizing her taking the 5th in a situation where she was not on trial, not charged with any crime and innocent of any wrongdoing by her own statement under oath. Thus far, however, this hasn’t proven to be a particularly practical position in terms of getting to the bottom of things. Andrew McCarthy has an essay out this weekend in which he argues that it may be long past time to offer Lerner immunity for any of her previous actions in the greater interest of fixing a broken system.

In this week’s episode of the Capitol Hill soap opera, Lois Lerner, the apparatchik at the center of the IRS jihad against conservative groups, was at long, long last held in contempt of Congress. Amid the farce, the House’s IRS probe is floundering.

Ironically, this happens just as the chamber’s separate probe of the Benghazi massacre has been given a chance to succeed. That is because House speaker John Boehner, after over a year of delay, has finally agreed to appoint a “select committee” to investigate Benghazi. Congress has no constitutional authority to enforce the laws it writes, a power our system vests solely in the executive branch. But a select committee, with a mission to find out what happened — as opposed to conducting oversight through the prism of some committee’s narrow subject-matter jurisdiction (judiciary, budget, education, reform, etc.) — is the closest legislative analogue to a grand jury.

McCarthy offers praise for the too long delayed select committee on Benghazi and notes that – if handled properly – it can achieve what endless rounds of blustering on the floor of the lower chamber and cable news talking head gab festivals will not. But the author also recognizes the unsatisfying taste of simply handing Lerner a free pass. In light of that, he offers consolation on how the big picture is more important than short term satisfaction.

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.

The shorter translation of what McCarthy is trying to convey here is that no matter how satisfying it might be to see Lerner doing an orange clad, belly chained perp walk out of the chambers, the desire for such an outcome is less important that finding out where the larger system broke down in the first place. It is even more important to identify those culpable at the highest levels, not just in the office where the levers of power were being fiddled.

While unsatisfying, as I said above, the logic of this is difficult to refute. But it only works if one critical assumption is valid. Would Lois Lerner go for it and spill the beans under oath with a ticket to full immunity tucked in her purse? In order for that to be true it would rely on her believing that she remains in potential future jeopardy. The investigation has stalled. She’s no doubt received more than a few messages from her own team telling her to stand strong and assuring her that this won’t go anywhere as long as everyone sticks to their story. She would be sacrificing her own reputation, burning all of her allied bridges and ending her public life to testify against her own bosses. That’s a lot to overcome, particularly if she’s feeling like the bulk of the storm has already passed and left her still standing.