TaxProf Blog

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

Wednesday, November 9, 2016

The IRS Scandal, Day 1280: WSJ—Lois Lerner As Precursor To James Comey

IRS Logo 2Wall Street Journal:  The Antonin Scalia Election, by William McGurn:

When Americans find themselves inside the voting booth on Tuesday, for many the decisive factor will be which candidate—Donald Trump or Hillary Clinton—should fill Antonin Scalia’s empty seat on the Supreme Court.

This is no small thing. Still, whose vote will replace Scalia’s on the high court is only half the Scalia story, and perhaps not the important half. Beyond even his jurisprudence, this was a man whose wisdom was to appreciate that American liberty is rooted in the separation of powers—and that the chief means of accountability is the ballot box and not the criminal courts.

The left abandoned this principle long ago. ... Mr. Comey’s real outrage was his acquiescence to the handcuffs the Justice Department put on FBI investigators throughout the Clinton email investigation—especially Justice’s refusal to go to a grand jury, without which investigators have no good way to compel evidence and testimony. The principled stand for an FBI director would have been to inform the attorney general,Loretta Lynch, that unless she gave his agents the standard tools of an FBI investigation, he would resign and tell the American people why.

Instead, Mr. Comey proceeded with the constraints and then showboated with a July press conference absolving Mrs. Clinton of any prosecutable wrongdoing. Never mind that an indictment was not his decision to make.

No doubt Ms. Lynch would not have indicted Mrs. Clinton. But had Mr. Comey kept his mouth shut, she, President Obama and Mrs. Clinton would be answering for the decision—not to mention for the highly unethical meeting between the attorney general and Mrs. Clinton’s husband that would have remained secret but for an intrepid reporter. Now all Mr. Comey has to show for his concern for his personal reputation is to have added the FBI to the list of government institutions the public no longer trusts.

And let’s remember how Republicans blinked on Lois Lerner. When Congress held her in contempt for refusing to testify about IRS targeting of conservative groups, the House had three choices: pursue her civilly (which would take years), jail her until she testified, or refer the matter to the local U.S. attorney. Then-Speaker John Boehner opted for the last, probably realizing the Obama Justice Department would never prosecute.

Throughout it all, Congress was lectured about not doing anything to jeopardize a criminal investigation. But in the American understanding, government is accountable first and foremost to We the People operating through our elected representatives. As a co-equal branch of government, Congress is free to use its own powers regardless of what some executive agency might be doing.

Certainly jailing Ms. Lerner would not have been without its political risks. Then again, the Founders meant for such decisions to require hard political calculations.

And the results of opting for an indictment House Republicans knew would not come? Ms. Lerner has mostly gotten off scot-free. The American people still do not know the whole story. And on Friday, a ruling from a federal judge in Ohio reminded us the IRS is still targeting conservative organizations for illegal scrutiny.

https://taxprof.typepad.com/taxprof_blog/2016/11/the-irs-scandal-day-1280-wsjlois-lerner-as-precursor-to-james-comey.html

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Comments

Professor, I think our day in the sun is coming.

Posted by: Ronald Norman | Nov 9, 2016 8:50:32 AM

Special prosecutors are coming in January 2017. Hopefully it's not too late.

Posted by: VoteOutIncumbents | Nov 9, 2016 9:51:06 AM

I am sure Publius would support a President Trump cracking down on the web of money laundering and nonprofit activism that is the lifeblood of the Democrat party or perhaps our friend Publius hasna new found respect for the dangers of weaponizing federal agencies and the checks and balances given to us by the founders.

Posted by: Wodun | Nov 10, 2016 4:15:09 AM

Hillary who? Washington is all about power. Nobody wastes power on a loser.

Posted by: Dale Spradling | Nov 10, 2016 9:57:10 AM

"Perhaps our friend Publius has a new found respect..."

Never underestimate the ability of a change election to cause some folks to rediscover the value of the Constitution, the law, oversight, etc. That, and, partisan hypocriscy can be spotted a mile away...

Posted by: MM | Nov 12, 2016 8:08:06 AM

Let's be real. The tone is set at the top. The Lois Lerner debacle just adds credence the Obama administration was as corrupt as the Clinton's which is why they wanted so desperately for her to win. We the people upset the status quo…

Posted by: dsocpa | Nov 14, 2016 6:03:30 AM