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Editor: Paul L. Caron, Dean
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Sunday, August 28, 2016

The IRS Scandal, Day 1207

IRS Logo 2Neil Buchanan (George Washington), How to Make a Dead IRS Conspiracy Theory Look Not Completely Dead:

How does a right-wing conspiracy theory work?  Why do Republicans insist on pursuing even obvious dead ends?  One answer to those questions is that they have a virtual army of people who are willing to push these stories relentlessly in many directions, and they know that they can sometimes get useful headlines even from misleading underlying stories.

Thus on Monday of this week we saw this headline on a tax blog: "The IRS Scandal, Day 1201: Larry Tribe Says 'IRS Is Engaged In Unconstitutional Discrimination Against Conservative Groups And Must Be Halted'—'Inexcusable Abuse'."

How did a liberal lion like Harvard law professor Laurence Tribe get pulled into this mess, seeming to back up a right-wing talking point? He did so by being intellectually open-minded and generous, but apparently without being aware of the underlying conspiracy theory that his words seemed to confirm. ...

More than three years on, conservatives are still trying to claim that there was a political conspiracy. Republicans in Congress have spent millions of dollars investigating these claims, while also diverting millions of dollars worth of IRS resources to answering repetitive requests for evidence.

Despite all of this, there continues to be no evidence to support any of the conspiracy theories.

So why is the story still alive, and how did Larry Tribe end up playing a starring role for a day in this never-ending saga?

Apparently, Tribe recently (correctly) dismissed the idea of an IRS scandal as a non-scandal that has been debunked. Because Tribe is among the most well-known liberal legal scholars in the country, as well as a former advisor to President Obama, he is regularly trolled by right-wingers. Apparently, one or more of them took to Twitter to tell Tribe that there really is an IRS scandal.

One such response pointed Tribe to a recent decision from the U.S. Court of Appeals for the D.C. Circuit. Because Tribe is intellectually honest and open to being corrected, he said that he would look at the evidence. What he found, upon reading the court's opinion, was that there had really been IRS activities that needed to be stopped. Like the IRS lawyers who had stopped the vetting program when they found out about it, Tribe was rightly shocked.

Which, of course, does not at all support the conspiracy theories that conservatives have been pushing. No one has ever claimed that the IRS employees did nothing wrong. That was all covered in the TIGTA report, and the IRS's leadership had already ended the practice before the report was issued.

But why would Tribe's tweet be in the present tense: "IRS Is Engaged In Unconstitutional Discrimination ..."? Is engaged, not was. Why did he say that the IRS "must be stopped," given that it has already stopped?

Tribe might simply have erred by not using the past tense, or he might not have realized that the activity had been stopped a long time ago.  Another explanation, however, is intriguing (though equally exculpating of Professor Tribe). ...

At this point, therefore, all the IRS has to do to make this case go away is to process the last two applications and issue a new directive putting a bureaucratic stake through the heart of the long-abandoned procedures.

This is, therefore, yet another example of how legal concepts can be misleading. Professor Tribe (assuming that he meant to use the present tense) correctly said that the IRS "is" still doing something wrong, but only in the procedural sense that the last of the effects of the wrongdoing have not been completely cleaned up and tied off.

In the broader political context, of course, the misunderstanding of this legal nuance is more than a bit unfortunate. An important public intellectual was directed toward one tiny bit of the public record on the IRS non-scandal, and he responded to that evidence appropriately. But his words are being misused by people who want to keep the anti-Obama scandal claims alive.

To repeat: Some IRS employees did something that they should not have done. Their superiors made them stop. An inspector general reported what happened to Congress. Republicans have no evidence to show that the Obama people were involved. And Laurence Tribe is rightly dismayed that it ever happened, as are we all.

https://taxprof.typepad.com/taxprof_blog/2016/08/the-irs-scandal-day-1207.html

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Comments

I have little confidence that my comment to the site where the original article is posted will make it out of moderation (hope springs eternal, however so I submitted it). I reproduce it below in the hope that it will see the light of day:

The objectionable practice was that these groups did not get their decision, positive or negative, in the usual weeks to a few months time frame. For the practice to actually stop, those whose applications had been held up would need to get a decision. Some of them remain without a decision to this day.

It does not take a conspiracy theory to say that the practice has not stopped. It just takes reading the court decision as Professor Tribe did so and having a modicum of intellectual honesty, which he has. The IRS has put these organizations in a catch 22 situation. The relevant section is on page 17 of the decision:

"Parallel to Joseph Heller’s catch, the IRS is telling the applicants in these cases that “we have been violating your
rights and not properly processing your applications. You are entitled to have your applications processed. But if you ask for
that processing by way of a lawsuit, then you can’t have it.” We would advise the IRS: if you haven’t ceased to violate the rights of the taxpayers, then there is no cessation. You have not carried your burden, be it heavy or light.

The IRS’s only further attempt to justify the lack of cessation as to some of the applicants is to refer to its Catch-22 litigation rule as a “longstanding policy.” To this we would advise the IRS: if you haven’t ceased discriminatory conduct, the fact that you have been failing to cease it for a long time does not create cessation. You still have not carried your burden."

Posted by: TMLutas | Aug 28, 2016 8:47:45 AM

To repeat: Some IRS employees did something that they should not have done.

Amazing how the author takes two conflicting positions. That the IRS did something it shouldn't have and that thinking so is a conspiracy theory.

The author might have some credibility if he didn't believe every single lie from the Obama administration and acknowledged what took, or is still taking place, without claiming nothing happened.

Posted by: wodun | Aug 28, 2016 2:44:48 PM

It seems to me that there is a big difference between "we've stopped doing it for now" and "we've stopped doing it."

Posted by: Henry Schaffer | Aug 28, 2016 2:46:18 PM

Buchanan is taking the ridiculous position that (a) before, some rogue IRS employees were holding up applications for an evil, political reason, but (b) now that the IRS leadership has found out about it, it is still holding up those same applications, for a period even more amazingly long, but now they have a good reason, though they won't say what it is.

Posted by: Eric Rasmusen | Aug 29, 2016 7:23:55 AM

"Laurence Tribe is rightly dismayed that it ever happened, as are we all."

Not sure who "we" are in this, though I'll assume it's uninformed boneheads like Prof. Tribe and other defensive Democrats that Mr. Buchanan is speaking for.

Which crystalizes the issue quite succinctly: If you're conservative and are concerned about IRS malfeasance, you probably want someone involved punished. If you're progressive and aren't that concerned about IRS malfeasance, you probably just want the story to go away...

Posted by: MM | Aug 29, 2016 7:29:54 AM

No, Mr. Rasmusen, "some rogue IRS employees were [not] holding up applications for an evil, political reason." There has been no such fact finding by anyone. Period. A specific, identified IRS mid-level, supervisor in Cincinnati–a self-identified Republican supervisor–came up with the BOLO lists as a way of dealing with an unexpected onslaught of 501(c)(4) applications from conservative and right-wing groups after Citizens United. The Republican supervisor’s motivation was simple; he didn’t know how to process the applications, and therefore referred them to D.C., which is exactly what he was supposed to do. The unconstitutional behavior highlighted by the D.C. Circuit’s dictum was the supervisor’s use of politically sensitive–and rather clumsy–BOLO terms. So now True the Vote can attempt to prove up its entitlement to an injunction. Which, unless the gubmint decides not to press the points, requires showings by the plaintiff: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. Bearing in mind that 501(c)(4) applicants need not await approval by the IRS of their applications before filing 990 returns asserting tax exempt status, what is the irreparable injury?

Posted by: Publius Novus | Aug 29, 2016 12:55:14 PM

Publius,

What's the name of the IRS official who developed the original BOLO list?

Posted by: MM | Aug 29, 2016 6:19:11 PM