TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Monday, July 31, 2017

The IRS Scandal, Day 1544:  How Lois Lerner Begat Robert Mueller

IRS Logo 2Wall Street Journal:  Mueller Is Trumping Congress, by William McGurn:

Did Congress learn anything from Lois Lerner? Judging from Capitol Hill’s self-abasing deference to Special Prosecutor Robert Mueller, the answer is no.

You remember Ms. Lerner. She was the official at the center of an Internal Revenue Service effort that denied conservative political advocacy groups tax-exempt status, or at least held up approval long enough that these groups could not be a factor in the 2012 election.

Back when Republicans were holding hearings on the matter, time and again they were lectured not to do anything that might affect the FBI’s investigation — which eventually ended with no charges against anyone. Though Ms. Lerner was found in contempt by the House for her refusal to testify, it proved all for show.

The tip-off came when then-Speaker John Boehner, rather than use Congress’s inherent contempt power to jail Ms. Lerner until she talked, opted for classic swamp symbolism — by passing the buck to an Obama Justice Department everyone knew would never prosecute her.

The result? Ms. Lerner avoided having to answer any hard questions. The IRS merrily continued to lose or destroy crucial documents. And John Koskinen, the awful replacement IRS commissioner who stonewalled and misled, remains in office.

The Lois Lerner fiasco offers a sobering lesson for a Congress whose various committees are holding hearings on Russia’s intervention in last year’s elections as Mr. Mueller investigates the same. While Mr. Mueller’s office is a watered-down version of Ken Starr’s or Lawrence Walsh’s , it remains true that special prosecutors corrupt even if they don’t corrupt as absolutely as independent counsels. The main headlines of the past week — Is Donald Trump attempting to undermine Mr. Mueller? Will Trump Fire Mueller? — all speak to the challenge a special prosecutor poses to the constitutional authority of the president.

Far less scrutiny has been devoted to the challenge Mr. Mueller poses to the authority of the legislative branch. In this case, ironically, the challenge stems less from the aggressiveness of the special prosecutor than from the meekness of Congress. In between their public tributes to Mr. Mueller’s sterling character, too many in Congress seem to worry more about how they might be affecting his investigation than about what his investigation might be doing to theirs.

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Comments

I thought the primary goal of Congress was to avoid responsibility. For anything.

Posted by: ruralcounsel | Jul 31, 2017 4:03:09 AM

Interesting article, but as usual, WSJ has a rather short memory. On December 4, 2007, in the midst of the Bush 43 U.S. Attorneys scandal, NYT discussed the failure of the House to use its inherent power to force Joshua Bolton and Harriet Miers to spill the beans to the House Judiciary Committee. See http://www.nytimes.com/2007/12/04/opinion/04tue4.html. At that time, Bolton and Miers “claimed executive privilege in ways that go far beyond what the law allows.” In particular, Miers refused to appear before the committee at all, and invoked the Fifth Amendment without responding to specific questions. (NB that while Lerner invoked the Fifth Amendment, unlike Miers, she did appear in response to the congressional subpoena.) The Bush 43 DOJ failed or refused to pursue contempt against Bolton and Miers, despite congressional contempt citations. Likewise, the House failed to pursue its purported inherent contempt authority. And also likewise, the Bush 43 WH went on its way, using a private email server for government business (gwb43.com), “merrily continued to lose” 22 million emails (subsequently found by the Obama Administration after the s/l had run), dumped the AG, and appointed a new one. Does any of this ring a bell? So as it happens, the Lois Lerner fiasco was not what begat Robert Mueller. It goes back at least to Harriet Miers and Joshua Bolton, and I doubt it stops there.

Posted by: Publius Novus | Aug 1, 2017 2:34:47 PM

Pubs,

The inherent contempt authority of Congress isn't purported, it's statutory, under Title 2 of the U.S. Code:

https://www.law.cornell.edu/uscode/text/2/192

Leaving aside your deep concern vis-a-vis the lack of scrutiny and conflict of interest regarding the GOP Congress towards the Bush White House 10 years ago, and your lack of concern vis-a-vis the planned scrutiny and conflict of interest regarding Mueller, Comey, etc. towards the Trump White House in 2017...

I'll cut right to the heart of the matter for any readers still interested in the IRS targeting of predominantly conservative tax-exempt organizations, which began immediately following the Supreme Court's decision in Citizens United v. FEC (2010) and leading up to the U.S. Presidential Election in 2012:

As a professional lawyer whose only interests are "facts and law" (your words), would you mind explaining how and why the following timeline of facts and events as reported on this website and elsewhere does not indicate a pattern of malfeasance and violations of federal law and the First Amendment, by officials at the DOJ and IRS?

https://mm253.wordpress.com/

Thank you!

Posted by: MM | Aug 1, 2017 7:21:24 PM

Yes, I would mind. Do your own research or send me a retainer.

Posted by: Publius Novus | Aug 2, 2017 6:09:06 AM

MM, Ol' PN is engaging in classic deflection. If you don't have a defense, the best tack is to say, "Oh, look at that bright shiny object over there."

Posted by: Dale Spradling | Aug 2, 2017 7:10:11 AM

How ignominious of you, Pubs, after literally spending hours and hours over the years providing the DOJ, IRS, and Lois Lerner pro bono legal defense around here.

Well, at least I got the answer I was looking for, that you're only really concerned with "facts and law" when the GOP is in the White House. So much for country before party.

Absolutely gorgeous...

Posted by: MM | Aug 2, 2017 7:33:23 AM