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Paul L. Caron
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Thursday, December 25, 2014

The IRS Scandal, Day 595

IRS Logo 2The Verdict:  Not All Scandals Are Created Equal: The CIA vs. the IRS, by Neil H. Buchanan (George Washington):

When the news of the wrongdoing at the IRS emerged last year, I was one of the people who was most concerned about the possible abuse of power by the agency. Knowing that the IRS had been used in decades past as a political weapon, in particular by the rogue Nixon Administration, it would have been truly horrible if our worst fears had turned out to be true. If there had been a political operation that was using the IRS for partisan purposes, that would have been a scandal.

No one ever said that it was a bad idea to gather evidence, and no one even once suggested that the correct response to any wrongdoing at the IRS would be to “look forward, not backward,” as an excuse to allow guilty parties to walk free. Instead, we all wanted to know whether there was sufficient evidence to suggest that any wrongdoing was directed by political operatives (answering to the White House or others), or instead that this was a matter of isolated bad decisions.

We were fortunate that the scandal became public news because of the release of an inspector general’s report about the IRS employees’ improper screening techniques. Therefore, rather than starting from a blank slate, with everyone in the dark about even the most basic facts, we were presented up front with an independent report that laid bare what had happened.

And once people digested that report, it was obvious that this was not a scandal. Correct procedures had not been developed or followed within the IRS, but internal measures had already corrected the behavior. In fact, we later found out that the inspector general’s report had underreported facts that would have made the situation look even less suspicious, because the “targeting” of political groups actually covered the political spectrum from right to left, whereas the report had initially made it appear that only extreme conservative groups had been subjected to additional scrutiny.

I wrote two columns on Verdict (here and here), as well as some posts on the Dorf on Law blog (for example, here), in which I concluded that this was a “non-scandal scandal.” John Dean (who knows something about the Nixon Administration’s abuse of power) reached the same conclusion in a Verdict column in May 2013, describing the IRS situation (as well as two other candidates for “scandal” status) as “all smoke and no fire.”

Even so, Republicans in the House of Representatives refused to let go of the IRS story, spending thousands of hours and millions of taxpayer dollars trying to gather more evidence of possible wrongdoing. They have failed spectacularly. This must mean either that there is no evidence, or that the evidence is being skillfully hidden.

For those who believe that there might yet be evidence out there regarding this still-not-a-scandal, the question has been what to do next. My colleague Ronald Rotunda, for example, suggested in a recent Verdict column that a special prosecutor should be appointed, with special powers to pry loose evidence that might exist to prove a political connection between the Obama Administration and the IRS’s misdeeds.

Although I strongly disagree with Professor Rotunda’s reading of the evidence and his conclusions, I can at least respect his fundamental concern. If there were sufficient reason to believe that there is hidden evidence, then certainly we would want to pursue such evidence through appropriate means. My take on the current situation is that there is not even much smoke, much less fire, and that any further inquiries are based on little more than the hope among Republicans that such inquiries might turn up something to suggest a real scandal. Those who disagree with that assessment can (and do) argue for further efforts to investigate.

There is, therefore, nothing particularly unusual about the IRS non-scandal, at least categorically. Some government actors did something that they should not have done. We have tried to figure out what happened, and why. The available evidence cannot support any prosecutions. Now, we are arguing about a judgment call regarding when to say that enough is enough.

Dorf on Law:  Playing With Scandals: Everything is a Cynical Farce, by Neil H. Buchanan (George Washington):

[T]he worst-case scenario in the IRS non-scandal scandal was, as I have always acknowledged, truly bad, if it had been true.  If there really were any credible evidence suggesting that the Obama Administration had orchestrated an effort to harm its political opponents by abusing the power of the IRS, that would be scandalous.  Happily, no such evidence has emerged.  Instead, the dead-enders have been reduced to saying, "There must be something going on.  We just need to keep digging."

Why are they so certain that something evil was afoot?  Apparently, they find it hard to believe that their opponents are not as cynical as they are.  (Dick Cheney himself said that the Obama people must have been using the IRS for political ends -- presumably because he could easily see himself doing the same thing.)  Because these people simply believe as a matter of deep commitment that something must be out there, the game is then to infer evil intent from every comment and action by the President.  Remember when Obama, in a State of the Union Speech, criticized the Citizens United decision?  Most people remember that moment because of Justice Alito's angry facial expression, caught on camera.  IRS scandal-mongers, by contrast, have insinuated that there is somehow a connection between Obama's comments and the IRS employees' actions.

Again, however, I concede in the column that this could have been a bad thing.  The people who worry about the IRS possibly being misused for political ends are not worrying about something that is inherently harmless.  They are simply refusing to give up the ghost on an investigation that has gone nowhere, and that shows no signs of ever leading anywhere. ...

One idea that I mention briefly toward the end of the column, but which I do not develop in any detail, is the comparison between possible excuses for refusing to prosecute or investigate the CIA, but to go after the IRS with guns blazing.  Remember, in order even to compare the IRS non-scandal scandal with the CIA torture scandal, we had to "go meta," in order to find some way in which the two situations could be comparably bad.  Once we have done that, however, then we must also be willing to apply the same level of generality to the arguments for and against aggressive prosecution of wrongdoing.  If the argument is, "We would harm America by failing to understand the important public service that the CIA provides," then the argument could also be, "We are harming America by vilifying the IRS." ...

[A]t a sufficiently high level of generality, one could make the argument that the future of America depends on a functioning government, and the government depends on revenue, and the ability to collect future revenues is threatened by politicians "looking backward" and attacking the IRS and its employees (and, hardly coincidentally, cutting its budget even as the IRS's legal responsibilities expand).  Attacking the CIA makes Americans less safe (an assertion that is obviously false)?  Well, attacking the IRS puts American democracy itself at risk!! ...

The common thread, then, is that the CIA's actions must be defended, because doing so reinforces the notion that the government is lawless (and always will be), while the IRS must be attacked because it is essential for the cynics to make everyone believe that the government is out to get them.  The less trust we have in our institutions, the better for those who want to further pervert those institutions.

https://taxprof.typepad.com/taxprof_blog/2014/12/the--1.html

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Comments

I agree with the vast majority of what these two gentlemen have written. Before we put this thing to bed however, we do have two sources of information that I believe it would be prudent to examine. First, the TIGTA documents that are the subject of Cause of Action v. TITGA, should be examined by one or both of the tax-writing committees authorized to receive tax return information. Based on reading the tea leaves (pun intended), these documents should at least shed some light on the allegations made against Austan Goolsbee regarding his comments about Koch Industries. I am puzzled that neither committee has yet required the production of the 2,043 pages of material identified in the lawsuit. But then, of course, my puzzlement is based upon my assumption that Rep. Camp's committee actually wants to shed some light on the question. Second, we should wait until the purported 30,000 emails to/from LLerner have been examined by TIGTA. Any recoverable and relevant emails should be produced to the House Ways & Means Committee for its evaluation. While I have little faith in the Republicans on the committee to give us a balanced picture, the minority can be relied upon to tell us the truth of what they contain.

Posted by: Publius Novus | Dec 25, 2014 9:19:49 AM