Paul L. Caron

Tuesday, December 16, 2014

The IRS Scandal, Day 586

IRS Logo 2Wall Street Journal op-ed:  Congress Can Pry Open a Clammed-Up IRS, by Charles Lipson (University of Chicago, Department of Political Science):

The agency pleads that it can’t share the documents that it may have shared illegally because that would be illegal.

The White House and IRS are entangled in a sticky court case with major political ramifications. It concerns allegations that the IRS illegally shared private taxpayer information with the White House related to conservative individuals or organizations. The Treasury Department said this month that although it has found a cache of documents that may be pertinent, it is not allowed by law to release them. The question now is who can find out whether the Obama White House has in effect weaponized the IRS, turning it into an agency that targets Americans out of favor with the administration.

Most likely, for reasons outlined below, Congress will have to be the one to find out. While we are far from knowing if any violations of the law have occurred, this is a serious issue. Misuse of the IRS was an article in Richard Nixon ’s impeachment—and he was only accused of trying to politicize the tax agency. ...

Treasury has clammed up again, trying to keep its contacts with the White House secret and reiterating that it is exempt from disclosure. The administration has offered a bizarre rationale: It would be illegal to turn over documents the IRS shared illegally since it is illegal for the IRS to share the files with anyone, including the court.

There still is a wide gap between our knowing that there is a cache of “responsive documents” and anyone establishing a direct connection between White House political operatives and the IRS. However revealing the documents may be, they would need to be followed up by interviews and depositions, which may lead to more documents. Only a thorough investigation can accomplish that.

A politicized Justice Department cannot be trusted to conduct an impartial investigation or to appoint a reliable outside prosecutor. This means that any serious inquiry is up to Congress.

Republican leaders are understandably cautious about this approach. When they take control of Congress in January, their overriding goal is to establish a track record for governing, not a pattern of investigating the Obama administration’s past transgressions. But this case should be an exception. Any White House interference with the IRS is a fundamental assault on the rule of law and the disinterested application of the tax code. If allowed to stand, it will serve as a pernicious precedent for future administrations. 

Congress should proceed carefully but steadily. ... If the documents show repeated, politicized contacts between the IRS and the White House—and only then—the House and Senate should vote to establish a joint congressional committee to investigate. ... The heavy lifting, particularly taking depositions under oath, should be done behind closed doors, beginning with lower-level people who might have seen unauthorized documents or their political uses. Give them transactional immunity and make clear they face serious legal peril if they fail to testify fully and truthfully. Then follow the chain of testimony up the organizational chain. A well-conducted investigation would either clear the White House’s senior political aides or implicate them in serious wrongdoing. 

The search for the truth here ought to be a bipartisan issue. It may yet become one as Democrats back away from the Obama White House.

IRS News, IRS Scandal, Tax | Permalink


Wodun: I ignored your last paragraphs because I have a peculiar attachment to and respect for facts. I do not chose to argue the opinion product of your mind, as I find it distasteful to duel with an unarmed person.

Posted by: Publius Novus | Dec 19, 2014 7:48:37 AM

Also, why ignore my last paragraphs when there is a pattern of behavior by Democrat party officials across the country? What happened at the IRS isn't an isolated incident and should be looked at in the context of other efforts by Democrats to persecute political dissidents. It is a criminal organization acting like an organized crime ring. I would much rather see Democrats reform their own party to act ethically rather than having to engage in lawfare with my fellow Americans.

Posted by: wodun | Dec 17, 2014 5:25:08 PM

"In the CoA case, the documents at issue are TIGTA’s documents, not the IRS’."

You claimed the IRS and WH had nothing to do with it when the documents in question originated from the IRS not TIGTA. TIGTA is part of the same department as the IRS. They are all connected.

Why would you think it is appropriate for Treasury to investigate itself when the agency has shown itself to be dishonest so many times? There are clear conflicts of interest that had the victims been other than those viewed as subhuman by Democrats, would have Democrats marching in the streets.

As far as your contention that we should trust the Obama administration to punish Democrat activists working for the party rather than the public, forgive me for not having faith in a dishonest person, administration, and political party. I doubt any IRS official received any punishment, issues of legal agency aside.

It seems some people have forgotten that ethical behavior is not just legal behavior. You might want to reevaluate your ethical support for Obama's IRS.

Posted by: wodun | Dec 17, 2014 5:21:31 PM

Wodun: Ignoring the last three paragraphs of your comment as simply your right to vent based on your own perception of reality, your comments on the CoA and NOM cases are factually and legally incorrect.

In the CoA case, the documents at issue are TIGTA’s documents, not the IRS’. They are records of one or more wrongful disclosure investigations, of which one is identified as the investigation of comments made by Austan Goolsbee. See CoA v. TIGTA, 2014 WL 4809423, *7 (D.D.C.). The records at issue were not at any time passed to the WH; rather, the records address the factual issue of WHETHER tax returns were transmitted to the WH, and if so, whether such transmittal was lawful.

The IRS employee who negligently disclosed NOM’s tax return is identified by name in the publicly available opinion that resolved the NOM wrongful disclosure case. See NOM v. U.S., 2014 WL 2526630, *1 (E.D. Va.). IRC § 6103 was amended in 1982, during the Reagan Administration, to substitute the U.S. as the defendant in wrongful disclosure suits, instead of individual IRS employees. Any discipline to which the IRS employee was or will be subjected is confidential under the Privacy Act of 1974, 5 U.S.C. § 552a, and depending on the nature of the discipline 26 U.S.C. § 6103, until such time as it would become public by way of a public lawsuit.

Posted by: Publius Novus | Dec 17, 2014 7:39:15 AM

" 1) neither the WH nor the IRS is entangled in this “sticky” court case, the party with the documents is TIGTA"

What does the T in TIGTA stand for? Treasury. The IRS is part of the Treasury. The documents in question came from the IRS and were sent to the White House. So, the IRS and WH are entangled in this.

This defense was used before, in the case with NOM. The IRS refused to identify who had given confidential records to a Democrat activist group by claiming the very privacy law that was broken also prevented any IRS employee from being held responsible for breaking it. Very Orwellian. The DOJ later settled that case but took no action against government officials acting as the skunk works for the Democrat party.

We can't trust the IRS, the DOJ, or any other part of the Obama administration to investigation itself no more than we could trust the Ferguson police department to investigate itself. The conflicts of interest are clear. The dishonesty and corruption of the Obama administration is there for all to see on this and every other issue, the pattern is undeniable.

It is far past time for Democrats to hold their own party accountable for what Obama's IRS is doing, what Democrats are doing in WI with SWAT raids on non-Democrat's houses, for what is going on in California, for the political prosecutions in Texas, and many other similar actions undertaken around the country by the Democrat party to criminalize not being Democrat.

Do the people marching in the streets realize how their own party, the same ones organizing and funding the protests, are persecuting political dissidents? Is it a case of it is not _____ when we do it? Or is it that because of the endless racist attacks and stereotypes inculcated by the Democrat party, that Democrats think their victims deserve what is happening to them?

Posted by: wodun | Dec 16, 2014 1:00:28 PM

If allowed to stand, it will serve as a pernicious precedent for future administrations.

That's misleading. The axiom that "Staff is policy" applies to the IRS. Nixon couldn't co-opt the IRS because its staff are very heavily Democratic. For the same reason, the Obama White House had no problem bending the IRS to its will modifying ObamaCare extralegally.

If this administration's precedent stands, the IRS will remain usable as a political weapon, but only by Democrats. Never by Republicans.

Posted by: AMT buff | Dec 16, 2014 12:56:35 PM

Another ill-informed editorial. Prof. Lipson: 1) neither the WH nor the IRS is entangled in this “sticky” court case, the party with the documents is TIGTA; 2) TIGTA’s defense is hardly bizarre, because it is prohibited from disclosing tax return information by IRC § 6103(a), a position that has been sustained on several occasions by federal district and circuit courts; 3) TIGTA’s defense is not, as you put it, “[i]t would be illegal to turn over documents the IRS shared illegally since it is illegal for the IRS to share the files with anyone, including the court; 4) there has been no determination that any documents were shared illegally with the WH; 5) TIGTA did not suggest that the court (Jackson, J.) cannot see the 2,043 pages of potentially responsive documents; and 6) the Committee on Way & Means, the Committee on Finance, and the Joint Committee on Taxation can have access to the documents for the asking, because they are authorized to see the documents under IRC § 6103(f).

You did, however, get one thing right. “There still is a wide gap between our knowing that there is a cache of’ responsive documents’ and anyone establishing a direct connection between White House political operatives and the IRS.” Or even if such a direct connection is established, it is not authorized by IRC § 6103(g).

Posted by: Publius Novus | Dec 16, 2014 8:38:29 AM