In IRS Scandal, Begging Is Not an Action Plan

One of the Articles of Impeachment drawn up against Richard Nixon was merely threatening to use the Internal Revenue Service to selectively audit political opponents.  Don’t let anyone forget that.  Today, IRS officials should go to jail for the overt campaign of intimidation, threats, and persecution of tea party organizations, conservative organizations, and individual critics of the liberal agenda. 

Yet the conservative response to the IRS scandal consists mainly of begging the U.S. Department of Justice to investigate and prosecute and begging the IRS to start playing nice by releasing information implicating its own staff in wrongdoing and perhaps criminal violations.  Like that’s gonna happen.

Begging is not a plan of action.  As a lawyer, the author must point out that lawyers leading conservative organizations are failing to implement the proven techniques already developed by Judicial Watch when Bill Clinton was president.  The “whine and cheese party” is not the right way to achieve the results that justice demands.  And all Americans are at risk from how this is being handled.

Judicial Watch was so successful and aggressive in prying information out of the Clinton administration and exposing corruption that Larry Klayman inspired a recurring character in the liberal political TV series The West Wing.  The TV drama reflected the view of Washington from the left, and portrays the fear and trauma among liberals concerning Larry Klayman.

To be sure, it was painstaking, hard work.  Apparently complaining is easier than hard work.

Lawyers for conservative organizations should have already taken sworn depositions of IRS staff by now, while fighting to take Lois Lerner’s deposition.  Requests for Documents should already be bearing fruit.  Of course, the administration will not cooperate.  Fighting inch by inch is the job. 

Two panel discussions at the 2014 Conservative Political Action Conference (CPAC) in National Harbor in Maryland explored IRS misconduct and the IRS scandal. 

Tom  Fitton, President of Judicial Watch, repeatedly called for criminal prosecution.  But Tom knows that only the U.S. Department of Justice can decide to prosecute.  So talking about prosecution is entirely useless.  Begging Obama pal Attorney General Eric Holder to investigate and prosecute IRS staff who implemented Obama’s goals is not an action plan.  It’s pathetic.

To be fair, Tom Fitton has already filled Judicial Watch’s plate with some massive projects.  When I worked at Judicial Watch as a lawyer, Larry Klayman was its head, but I was always very impressed with Tom.  Larry Klayman, now at Freedom Watch, is taking on the massive job of suing the National Security Agency over its illegal spying on American citizens.  So the master himself is just a tad busy right now fighting other Goliaths.

But how could conservatives have forgotten Judicial Watch’s successes?  Judicial Watch wrote the book on taking the bull by the horns to force disclosure about government misconduct.  How hard is it for other lawyers to just copy?

After the first panel, Jordan Sekulow of the American Center for Law and Justice, son of mega-lawyer Jay Sekulow, enthusiastically discussed with me at length what could actually be done.  I explained some of Judicial Watch’s examples.  Jordan Sekulow was very receptive, but demurred that the ACLJ’s lawsuits were still in the motions stage and that it was complicated because there were so many lawyers on the other side.  Yeah, that’s real familiar.  I helped distribute Judicial Watch pleadings to a huge cast of lawyers.  But that never slowed Larry Klayman down.  It meant that, to change the world, we young lawyers sometimes went home at midnight.  But Larry never left before we did.

Made-for-TV lawyer Cleta Mitchell recommended that conservatives and Tea Party groups send a Freedom of Information Act (FOIA) request to the IRS demanding all documents about themselves.  But this is the problem.  Unless followed up on by an aggressive, persistent, effective lawsuit, sending a FOIA is a waste of time.  A FOIA just makes paying clients feel like something is happening that isn’t.

Christine O’Donnell on the second panel explained how a law designed to protect the privacy of taxpayer information, 26 United States Code 6103, is being grossly misinterpreted by the IRS to cover up the abuse and misconduct.   The IRS is concealing information about its own illegal acts by claiming that disclosure would violate the privacy protections – to the taxpayer – of 26 USC 6103. 

This is crazy.  In fact, it is so crazy that any real lawyer would have filed – and won – a very simple lawsuit by now.  I wrote the lawsuit in under four hours.  Somebody use it.  Such a lawsuit is a pure question of law, so it could produce a quick answer with no trial or even depositions.  A federal court would agree that the IRS’s interpretation is crazy.

But instead, lazy lawyers are simply waiting to see if the Congress will pass David Camp’s reform legislation.  Unfortunately, (a) there is no chance that U.S. Senate Majority Leader Harry Reid (D-NV) will allow David Camp’s bill to come to the Senate floor for a vote, and (b) as Christine O’Donnell herself pointed out, new legislation would not be retroactive.  David Camp’s legislation would not help anyone impacted so far.

Only a party with “standing” – who has been directly harmed by IRS abuse and misconduct – could file this lawsuit.  As far as we know, this is only Catherine Englebrecht, the National Organization for Marriage, Christine O’Donnell, and other organizations whose tax records were abused.