Paul L. Caron

Tuesday, August 5, 2014

The IRS Scandal, Day 453

IRS Logo 2Washington Post:  Lois Lerner’s Conservative Bashing: Smoking Gun or Just Cause for Investigation?:

The Federal Eye received lots of feedback in recent days about an article analyzing the e-mails in which former Internal Revenue Service official Lois Lerner described conservative talk-show hosts as “__holes.”

In that piece, we noted that career federal employees are allowed to have political views, as long as those views don’t influence their work or affect elections. We also noted that Lerner’s comments represent only circumstantial evidence rather than rock-solid proof that she used her authority to silence conservatives.

Some readers objected to our rationale. ...

To be clear, the point of last week’s article was not to suggest that authorities shouldn’t investigate Lerner for potential wrongdoing. It was to say that Republicans haven’t proven definitively whether the former IRS official used her position to slow down the proliferation of conservative advocacy groups. ...

Did Lerner’s unit use inappropriate techniques to scrutinize such groups? The answer is yes, according to the agency’s inspector general, who said in a report last year that the IRS selected groups for review based on their names and policy positions.

The next question, then, is whether those actions were part of an effort to target conservative groups while going easy on left-leaning organizations. In other words, did Lerner’s political views — such as those expressed in her e-mails — cause her to become less than impartial in her work? ...

[M]any of the facts in this case look bad for Lerner. Her IRS division used inappropriate screening techniques that largely affected conservatives. She was a registered Democrat who used offensive terms to describe firebrand right-wingers. She expressed a desire to work for an advocacy group founded by President Obama’s allies. And she invoked her Fifth Amendment rights instead of testifying before Congress about her involvement in the targeting behavior.

Regardless, that’s all circumstantial evidence. It makes Lerner a prime candidate for investigation, and it’s great campaign fodder for the midterm elections, but it does not prove that she violated the rules of professionalism by trying to hinder conservative groups. Republicans need direct evidence to confirm that theory, which is part of the reason they want an independent prosecutor to look into the case. It’s also why they are so frustrated with Lerner’s missing e-mails.

IRS News, IRS Scandal, Tax | Permalink


I disagree with WaPo that “direct” evidence is needed in order to conclude that Lerner broke the law or committed non-criminal malfeasance. “Direct,” as opposed to “circumstantial” evidence is rarely extant, much less discoverable in these types of situations, which essentially turn on the actor’s intent. And as most trial lawyers know, circumstantial evidence is often a better indicator of the truth in any event. So strong and consistent circumstantial evidence would convince me of Lerner’s malfeasance. Having said that, WaPo's list of Lerner's "bads" bothers me a great deal.

Yes, the Cincinnati EO people used inappropriate screening techniques to attempt to sort out and classify the substantial increase in 501(c)(4) applications they received in the post-Citizens United environment. Yes, Lerner should have been on top of that, detected and squelched it sooner, and at least considered some appropriate employee discipline. But so far, I have seen no evidence–at all–indicating that Lerner instructed Cincinnati to use the blunt-instrument BOLO lists for sorting the (c)(4) apps. That kind of evidence–top-down direction, rather than bottom-up origination–is key to proving that Lerner initiated the inappropriate screening techniques for political reasons. Everything we have seen so far suggests that, in fact, the originators of the screening techniques were lower- or mid-level technicians in Cincinnati.

WaPo also cavalierly lists Lerner’s party registration (Democrat) as a piece of the circumstantial case against her. Wow. Are you now or have you ever been affiliated with the Democratic Party, or the party organization known formerly as the “Democracy?” Shades of Uncle Joe here.

And, like many other sources, WaPo writes seriously that Lerner “expressed a desire to work for an advocacy group founded by President Obama’s allies.” Oh my. How did WaPo’s writers do in their lit classes in high school and college? Apparently not too well. It is clear from the context of Lerner’s offending email that she was writing facetiously, in a mood and tone that a ninth grader would spot and accurately identify during their first semester. In other words, Lerner was making sport of the advocacy group. As such, her writing may be evidence of hubris or a narcissistic personality, but not political bias.

At bottom, we have one, not-so-sure-fire indicator of malfeasance by Lerner. She invoked her Fifth Amendment privilege against self-incrimination, rather than testify to a Congressional committee. If we had more professional investigators on the job, instead of the Darryl Issa & Dave Camp Amateur Drama Hour, we might know more of substance about this. But as they say, that ain’t gonna happen anytime soon.

Posted by: Publius Novus | Aug 5, 2014 7:43:31 AM