How to break through the IRS stonewall

The Internal Revenue Service is currently employing a naked Catch-22 strategy in order to prevent disclosure of its potential misdeeds in disclosing private taxpayer information on conservatives to the White House.  The conservative legal group Cause of Action filed a Freedom of Information request in 2012, asking for documents that relate to disclosure, and was stonewalled, so then filed suit.

An Obama appointee, Judge Amy Berman Jackson, ruled for Cause of Action and ordered Treasury to search for them.  The Treasury Inspector General for Tax Administration (TIGTA) has disclosed that 2,500 have been found.  This is where the Catch-22 was invoked.  Because it is illegal to share private taxpayer information, the IRS is claiming that it would be illegal for it to reveal evidence of its disclosure of such information.  You have to admire the chutzpah.

Writing the Wall Street Journal, University of Chicago Professor Charles Lipson offers a way to break this stonewall, and it involves Congress starting next year.

 Congress should proceed carefully but steadily. First, see if Judge Jackson secures the IRS documents for Cause of Action. The agency could appeal her ruling and delay for a few months, but it cannot simply refuse a judge’s order. To ensure that the documents are not heavily redacted, Paul Ryan and Orrin Hatch, respectively the new chairmen of the House Ways and Means Committee and the Senate Finance Committee, should exercise their unique legal right to review the raw documents without deletions. If stymied, they too should sue.

This is a fascinating wrinkle.  I had no idea that there was a special right available to Congress to see un-redacted material.  Perhaps this is a corollary to national security issues, where members of Congress are authorized to view confidential documents.  Professor Lipson continues:

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 committee’s senior members should be seasoned prosecutors, aided by outside counsel with deep experience investigating white-collar crime. Such a body would raise the issues before a skeptical or hostile mainstream media, and overcome the disorganized grandstanding that undermines so many hearings.

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.

I suspect there would be as much stonewalling as possible, but with two years in which to act, there could be ample opportunity for Congress to get to the bottom of this, especially since Judge Jackson has made her first ruling and does not seem to want to be flouted.  As the lame-duck Obama administration draws to a close, there will be a potential decision point for Democrats in Congress if the worst suspicions of politicizing the IRS appear to be turning out to be confirmed.  If it looks like evidence will be developed showing that the IRS and White House violated the law, Chick Schumer’s admission that Obamacare was a mistake could look in comparison like a day at the beach for the Obama wing of the party.

Hat tip: Clarice Feldman

The Internal Revenue Service is currently employing a naked Catch-22 strategy in order to prevent disclosure of its potential misdeeds in disclosing private taxpayer information on conservatives to the White House.  The conservative legal group Cause of Action filed a Freedom of Information request in 2012, asking for documents that relate to disclosure, and was stonewalled, so then filed suit.

An Obama appointee, Judge Amy Berman Jackson, ruled for Cause of Action and ordered Treasury to search for them.  The Treasury Inspector General for Tax Administration (TIGTA) has disclosed that 2,500 have been found.  This is where the Catch-22 was invoked.  Because it is illegal to share private taxpayer information, the IRS is claiming that it would be illegal for it to reveal evidence of its disclosure of such information.  You have to admire the chutzpah.

Writing the Wall Street Journal, University of Chicago Professor Charles Lipson offers a way to break this stonewall, and it involves Congress starting next year.

 Congress should proceed carefully but steadily. First, see if Judge Jackson secures the IRS documents for Cause of Action. The agency could appeal her ruling and delay for a few months, but it cannot simply refuse a judge’s order. To ensure that the documents are not heavily redacted, Paul Ryan and Orrin Hatch, respectively the new chairmen of the House Ways and Means Committee and the Senate Finance Committee, should exercise their unique legal right to review the raw documents without deletions. If stymied, they too should sue.

This is a fascinating wrinkle.  I had no idea that there was a special right available to Congress to see un-redacted material.  Perhaps this is a corollary to national security issues, where members of Congress are authorized to view confidential documents.  Professor Lipson continues:

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 committee’s senior members should be seasoned prosecutors, aided by outside counsel with deep experience investigating white-collar crime. Such a body would raise the issues before a skeptical or hostile mainstream media, and overcome the disorganized grandstanding that undermines so many hearings.

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.

I suspect there would be as much stonewalling as possible, but with two years in which to act, there could be ample opportunity for Congress to get to the bottom of this, especially since Judge Jackson has made her first ruling and does not seem to want to be flouted.  As the lame-duck Obama administration draws to a close, there will be a potential decision point for Democrats in Congress if the worst suspicions of politicizing the IRS appear to be turning out to be confirmed.  If it looks like evidence will be developed showing that the IRS and White House violated the law, Chick Schumer’s admission that Obamacare was a mistake could look in comparison like a day at the beach for the Obama wing of the party.

Hat tip: Clarice Feldman