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Tuesday, July 23, 2013

Attorney in Federal Agency General Counsel's Office: There Is 'No Innocent Explanation' for IRS Chief Counsel's Meeting With Obama

IRS Office of Chief Counsel LogoI am reprinting (with permission) an email I received today from an attorney in the general counsel's office of a federal agency (not the IRS) concerning reports of IRS Chief Counsel William Wilkins' meeting with President Obama in the White House two days before providing guidance to IRS personnel on handling tax-exempt applications from Tea Party and other conservative groups:

As someone who works as an attorney at an agency general counsel's office, I think people are missing the significance of Obama meeting with the IRS chief counsel in the White House. Understand, agency general counsels are not authorized to give legal advice to the President. They advise their agency heads. Only the AG and by delegation the Office of Legal Counsel to the President is authorized to give legal advice to the President. In my seven years of working at a General Counsel's office, I have never once heard of our general counsel meeting with the President. OLC would go crazy if he did. I have worked on a couple of legal opinions that did go to the White House. And each time they were staffed through OLC. Nothing went to the President that wasn't signed off on by OLC and delivered to him by OLC.

So I can't for the life of me come up with any kind of innocent explanation for why Obama would have met with the Chief Counsel of the IRS. That meeting shouldn't ever happen, and especially not without the Commissioner of the IRS being there. Presidents just don't go to agency chief counsels with legal questions. Presidents don't go to anyone with legal questions. Their staff does. The idea that the President would sit down with some random agency chief counsel and discuss some pressing legal issue is just bizarre to anyone who has worked in the legal field at that level. I am not sure the reporters covering this story understand how legal advice is actually delivered to the President and just how out of the ordinary that meeting was.

Update:  John Steele (Legal Ethics Forum), "There Is 'No Innocent Explanation' for IRS Chief Counsel's Meeting With Obama"

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Comments

I have been trying to track back the source of this April 23 White House meeting report, but all roads lead to a column by political operative Dick Morris. I thought I saw elsewhere that there were 13 people present at the same meeting, which would indicate it might involve Obamacare implementation.

At the same time, Obama was looking for a new IRS Commissioner. If he and Wilkins were such good buddies, maybe this was an interview.

Posted by: Bob | Jul 23, 2013 4:16:11 PM

I may have missed something here, so perhaps someone can educate me. The above email from an agency general counsel staff attorney assumes: (i) that in the purported visit to the White House, Wilkins (IRS Chief Counsel) met personally with the President, (ii) in that meeting, Wilkins counseled with the President regarding conservative groups (such as the tea party), including specifically their 501(c)(4) applications; (3) as a result of that counseling session, Wilkins directed action by the IRS against the conservative groups, including the tea party; and (4) at a minimum Wilkins' directions included further holding up conservative groups including tea party, 501(c)(4) applications. Have all of those assumptions been established or are they just speculations? If they are just speculations, it would appear to me as a suspicious sort that this anonymous general counsel staff attorney has some agenda and/or bias which he or she is not stating. So, if they are not established facts, I would encourage this anonymous general counsel staff attorney to state his or her agenda or at least his or her known biases.

And, I would even encourage this anonymous general counsel attorney to out himself or herself rather than assert claims of impropriety and even illegality and hide behind the shield of anonymity.

Thanks,

Jack Townsend

Posted by: Jack Townsend | Jul 23, 2013 5:14:23 PM

"Johnson [then GC to DOD] has as many as 12 to 15 meetings a day, generally at the Pentagon or at the White House, which he visits about three times a week." http://abovethelaw.com/2011/07/an-afternoon-with-jeh-johnson-general-counsel-of-the-defense-department/#more-78415

Attys from agency counsel offices have meetings at the WH all the time. They are there, as attys often are, to represent their clients. See, also, "Jeh C. Johnson, the Pentagon general counsel . . . told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” http://www.nytimes.com/2011/06/18/world/africa/18powers.html?_r=0

"Another role of the General Counsel is to represent the Agency with reference to law-related matters at other Executive branch agencies, at the White House, before congressional oversight committees, and with foreign governments." http://yulr.org/interview-stephen-w-preston-general-counsel-central-intelligence-agency/

" performs external liaison on legal matters with other federal agencies;" http://www.gsa.gov/portal/content/104701

"The Office of General Counsel also . . . advises and responds to questions from the White House and other agencies" http://www.archives.gov/legal/

The author of the email is trying to manufacture a controversy where there is none.

Posted by: truthsquad | Jul 23, 2013 6:33:37 PM

Did anyone check the President's schedule for that day? Both the Daily Caller and Dick Morris have had credibility problems in the past. For example, see "Romney Landslide".

Posted by: BOLO | Jul 23, 2013 10:20:37 PM

Jack --- we know that conservative groups were targeted. We know that confidential information on conservatives was leaked. This is an incredible scandal. This will go down as the worst possible things that happened to the tax attorneys and resolution industry. Why? Because now instead of arguing facts and law, now the public has been clearly informed and well aware --- facts and law don't matter, political influence is king. So unless we focus our businesses on becoming power brokers, the public will perceive little value for our services.

But anyway, so how did it happen? It would be nice to know. But instead, we have an administration completely stonewalling. (Why hasn't independent counsel been assigned?) And quite a few Democrats who say nothing happened! We have an administration that has a history of intimidating whistleblowers. And yet, somehow it is important that you want this person to out himself ? Believe it or don't. He simply states his assumptions and then applies those to his experience. His conclusion is that something isn't right.


And something isn't right. Especially when good people excuse something completely wrong.

The rule of law has been completely breached and it can not be repaired unless democrats, as well, fight to maintain the rule of law.


Posted by: Anthony E. Parent, Esq. | Jul 24, 2013 7:40:27 AM

truthsquad, you seem to be missing the tremendous distinction between meeting with/advising "the White House"—which almost always means "staff", either in the WH or the EEOB—and personally meeting with/advising the President. The correspondent is correct about the latter, and what he says is consistent with my own experiences over several years of working with both OLC and WH Counsel's Office.

Posted by: FJ | Jul 24, 2013 7:53:14 AM

I disagree, I now believe that this is the link, along with 130+ meeting of the IRS Dir @ White House (you know the ones he "can't remember what was discussed"?) that the White House orchestrated the IRS's stifling of Conservative organizations. The media will do it's best to ignore this, UNTIL a Special Council is appointed. This is far worse than what Nixon did, because this is a direct attempt to stile political speech, something Nixon NEVER, EVER contemplated.

Posted by: Rich Vail | Jul 24, 2013 8:02:52 AM

For the conspiracy theorists, perhaps a dose of truth will help:

Amy S. Elliott, Photo Op with President Turns Wilkins Into Latest EO Scandal Target, 2013 TNT 142-2 (7/24/13)

According to official White House visitor records, Wilkins met with the president at 4 pm on April 23 in the Roosevelt Room with about 13 other people. At around 5 pm, Obama, Wilkins, and 13 other presidential appointees from various agencies, including the departments of Interior, Defense, and Energy, took pictures in the Oval Office.

But, psychologists regularly report that truth will not convince the fringe that they are wrong.

Jack Townsend

Posted by: Jack Townsend | Jul 24, 2013 8:30:35 AM

Do you have a list of those other appointees?

Posted by: jms | Jul 24, 2013 9:08:50 AM

I don't know anything about the facts of this case, but, per Jack Townsend's last comment, this is certainly not the only time President Obama has done photo-op meet-and-greets with presidential appointees. And per truthsquad's comment, it's hardly unheard of for agency GC's to give substantive advice to the president directly. Read Dan Klaidman's book Kill or Capture, for example, which notes how often Harold Koh gave direct advice to the president.

Posted by: Sam Bagenstos | Jul 24, 2013 9:14:10 AM

Sam Bagenstos - I worked for the Chief Counsel's office, albeit not at the executive level. Nevertheless, I was high enough to see how things worked vis a vis Treasury and the White House, and the notion that Wilkins would have met personally with Obama in his capacity as Chief Counsel (who reports directly the General Counsel for the Treasury) strikes me as dubious. At a minimum, he would be accompanied by the staff of the General Counsel (see org chart at http://www.treasury.gov/about/organizational-structure/offices/Pages/General-Counsel.aspx), and probably by the General Counsel himself, at such a meeting.

Unless. Remember that Wilkins is the lawyer who represented Jeremiah Wright. He is part of Obama's "go-to" machine. That might get him a one-on-one with Obama.

Except. The sloppy reporting that is going on about this issue makes me doubt that such a one-on-one is what occurred, as Jack Townsend points out.

Posted by: punditius | Jul 24, 2013 10:56:39 AM

"According to official White House visitor records, Wilkins met with the president at 4 pm on April 23 in the Roosevelt Room with about 13 other people. At around 5 pm, Obama, Wilkins, and 13 other presidential appointees from various agencies, including the departments of Interior, Defense, and Energy, took pictures in the Oval Office.
Posted by: Jack Townsend | Jul 24, 2013 8:30:35 AM"

So what were all these people doing between 4 pm and 5 pm? Just standing around making small talk or straightening each other's ties to make themselves look good for the picture-taking? What happened in that hour?

Posted by: whej | Jul 24, 2013 12:56:30 PM

I’m disappointed that Prof. Paul Caron posted an anonymous rant, alleging scandalous behavior on the part of General Counsel of the IRS, given the lack of supporting evidence in the material linked to.

I went back to the original article that he links to (though without naming in the text), from The Daily Caller. That says that there were 13 people at this meeting, citing the White House logs. It does not make any effort to state who the other 11 folks were (beyond the President and IRS Counsel). So far as I can tell, the names and affiliations of the other people are as public as the two named, and would have a lot to do with figuring out whether there was anything nefarious in the meeting—but the information is not there. To the suspicious, this might suggest that including the identities of the other 11 would not support the premise of nefariousness.

The premise of the ranter is that there was a secret meeting to give secret legal advice to the President, avoiding the White House Office of Legal Counsel. The evidence in the supporting material does not show that that the meeting was secret, and does not present a context in which it was likely that legal advice was given to the President avoiding the OLC.

The ranter also tars the IRS Counsel with having once represented a person who is unpopular among many folks. Again, I’m disappointed that Paul Caron would allow his blog to be used for a violation of the spirit of American lawyers’ ethics (views of clients not to be attributed to lawyers).

Posted by: Kenneth S. Gallant | Jul 24, 2013 1:07:32 PM

I have a spreadsheet up on my website that has some details on IRS people at the "White House" (it includes Old Exec. Office Bldg. meetings too). The original White House giant spreadsheet would allow sorting to find out precisely who else was at the meeting. I list the 3 Wilkins meetings below. The first two are with staff---- I don't know who. The third is the suspicious one. It says ALL APPOINTEE EVENT.


WILKINS WILLIAM J U00436 74804 VA 4/26/2010 8:50 D1S01 4/26/2010 9:42 D1S 4/23/2010 17:04 4/26/2010 9:00 4/26/2010 23:59 2 LC WIN 4/23/2010 17:04 LC FONTENOT KEITH OEOB 279 LEVIN ARIEL 7/30/2010


WILKINS WILLIAM U12348 VA 6/2/2010 16:05 6/3/2010 17:00 6/3/2010 23:59 6 DC WIN 6/2/2010 16:05 DC FONTENOT KEITH OEOB 428 LEVIN ARIEL 9/24/2010


WILKINS WILLIAM J U13645 VA 6/23/2010 6:43 6/29/2010 16:00 6/29/2010 23:59 4092 DC WIN 6/23/2010 6:43 DC POTUS WH S. GROUNDS OFFICE VISITORS S. GROUNDS ALL APPOINTEE EVENT

http://rasmusen.dreamhosters.com/b/2013/06/irs-data-2009-2010-white-house-visitor-logs-and-2009-12-bonuses/

Posted by: Eric Rasmusen | Jul 24, 2013 1:08:11 PM


The Tax Notes Today article (with photos) cited by Jack Townsend above at 8:30:35 AM kills this latest conspiracy theory.

http://www.taxanalysts.com/www/features.nsf/Features/1473C0466664514485257BB20045FD55?OpenDocument

Note that PunditTracker rated Dick Morris "The Worst Pundit of 2012."

Based on his ongoing sloppy research and unsubstantiated claims, Morris may also win that award in 2013.


Posted by: BOLO | Jul 24, 2013 3:27:49 PM

...and POTUS

Posted by: Don | Jul 24, 2013 3:38:36 PM

I don't get this comment above:


"The ranter also tars the IRS Counsel with having once represented a person who is unpopular among many folks. Again, I’m disappointed that Paul Caron would allow his blog to be used for a violation of the spirit of American lawyers’ ethics (views of clients not to be attributed to lawyers)."


The American legal tradition is that allegations (even arguably frivolous ones, usually a matter of whose ox gets gored) get aired, debated, and either sustained or rejected based on what the evidence says. With this blog posting, Prof. Caron serves that tradition faithfully.

Posted by: Jake | Jul 24, 2013 4:31:27 PM

Are Obama's defenders saying that the IRS targeted conservative groups for persecution but that Obama had nothing to do with it or are they claiming that the IRS did nothing wrong?

Those are two very different things and while I can understand the defense of Obama, the IRS has already admitted to wrong doing.

Are Democrats going to help get to the bottom of this or are they going to continue stonewalling the investigation? The stonewalling doesn't make any sense if the illegal actions don't extend beyond the IRS.

Either we have a tyrannical President using government agencies to persecute political opponents or we have a tyrannical government agency persecuting political opponents. Neither is worth defending and both deserve a full investigation.

So Democrats are you with the 99% or are you with the tyrannical behavior of the Obama administration?

Posted by: wodun | Jul 24, 2013 6:08:07 PM

I wonder why Obama and the dems got so freaked out when the IRS chief counsel was implicated. Now we know, with these direct meeting they may have found the ever elusive direct connection with Obama.

Posted by: richard40 | Jul 25, 2013 10:54:35 AM