In April, the House Ways and Means Committee referred Lois Lerner to the Department of Justice for criminal prosecution. Nothing has come of it. Given the politicization and lawlessness of the DOJ under Attorney General Eric Holder, nothing likely will.
The House should move to impeach Lerner instead, and other IRS officials who have broken the law. Federal bureaucrats need to be sent a message that lawbreaking is not part of their job descriptions, and that notwithstanding our recalcitrant Justice Department, our constitutional system provides this remedy against executive branch officials gone rogue under the law.
More importantly, Americans deserve to know that lawbreaking within their own government will have consequences.
Justice Louis Brandeis wrote in 1928, “Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”
Those within the vast executive branch who are charged with enforcing the laws must be accountable to the law. Otherwise our system fails.
Federal impeachment under Article II of the Constitution is not reserved just for presidents or other high officials, but “all civil officers of the United States” as well. Aside from members of the military, any official in the executive branch is subject to impeachment.
Impeachment resolutions, for example, were filed or considered for the collector of the Port of New York in 1867, the collector of customs for the Port of El Paso in 1924 as part of the Tea Pot Dome scandal, and a commissioner for the District of Columbia in 1926.
Impeachment is neither a civil nor criminal prosecution, and there are only two available remedies: firing the individual and forbidding the individual from ever again holding a position of trust (i.e., employment or appointment) within the federal government.
Even though Lerner has resigned from the IRS, Congress has a duty to ensure she never be given the high and honored trust of working for the people within our government again.
The same should apply to any of her colleagues, higher and lower within the IRS, who broke the law and violated the public trust but who are not being prosecuted.
We are well aware that impeachment hearings of IRS officials would come with their own set of public displays of partisanship and political showmanship.
But because the individuals in question are bureaucrats and not elected or appointed officials, it may reasonably be expected that the facts are far more likely to govern the outcome than would be the case with higher officials.
In fact, this opportunity to have a process focused on the truth, rather than partisanship, is one of the appealing aspects of the impeachment option.
The House of Representatives could issue its own investigative subpoenas — without reliance on the Department of Justice — and conduct its own impeachment trial in full view of the Senate and the American public, who will themselves judge the good or bad conduct of our elected representatives in this matter.
Impeachment of IRS officials would send a message in favor of the rule of law without the political hysteria that surrounds the mere discussion of impeachments of higher officials — hysteria the president seems happy to initiate.
Lawbreaking IRS officials would not have the platforms to make political hay out of impeachment hearings like President Clinton did.
The House would therefore have a better opportunity to lay out the facts and the law in ways that the American public would welcome.
Given that so many Americans already have angst about the IRS, impeaching Lerner and any of her law-breaking colleagues would receive popular support.
Even most big-government Democrat voters don’t very much like the IRS because of the fear we all have of being targeted by the IRS.
A well-conducted impeachment trial would avoid making this a political spectacle. With the lawlessness and outright lawbreaking of the Obama administration, only the most blindly partisan Americans would not welcome this remedy.
It would therefore be difficult for Democrats in either the House or Senate to hold up an impeachment that is based on solid legal and factual grounds in a trial that would be widely covered and televised.
Partisan opposition would be perceived as protecting lawbreaking within government — instead of protecting the best interests of Americans and the rule of law itself.
Gallup reported in December 2013 that 72 percent of Americans “say big government is a greater threat to the U.S. in the future than is big business or big labor.” Our own government is the biggest lawbreaker in our society, and Americans realize that fact.
If criminal conduct within the IRS and the federal bureaucracy won’t be prosecuted, our Constitution at least gives our elected representatives a check of impeachment on unelected “civil officers.”
Impeaching Lerner and others may actually help restore some faith that someone in government takes the rule of law seriously.Ken Cuccinelli is president of the Senate Conservatives Fund and the former attorney general of Virginia. Mark Fitzgibbons is co-author with Richard Viguerie of The Law That Governs Government: Reclaiming The Constitution From Usurpers And Society's Biggest Lawbreaker.