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No DOJ Charges for IRS Officials in Scandal


The cynic in me was wholly unsurprised when the Associated Press reported the Department of Justice (DoJ) concluded that no formal charges would be filed against any of the IRS officials embroiled in the IRS scandal of 2013. In a letter to Congress, the DoJ announced that they found “no evidence that any IRS official acted based on political, discriminatory, corrupt or other inappropriate motives that would support a criminal prosecution.”

Never mind the fact that computer hard drives and emails disappeared, secret email accounts were maintained, interoffice messaging systems were used to avoid written records, only one conservative group received approval under Lerner in three years, and some groups remain unapproved after 5 years — all while Obama’s brother received retroactive tax-exempt approval in less than 30 days.

According to the DoJ letter, such actions were merely, “mismanagement, poor judgment and institutional inertia.” That is utter nonsense.

Stephen Dinan at the Washington Times did a decent round up of the news and reactions to the decision.

The IRS did mishandle tea party and conservative groups’ nonprofit applications, but their behavior didn’t break any laws, the Justice Department said in a letter to Congress Friday that cleared the tax agency and former senior executive Lois G. Lerner of any crimes.

“Ineffective management is not a crime,” Assistant Attorney General Peter J. Kadzik said in a letter to the House Ways and Means Committee. “The Department of Justice’s exhaustive probe revealed no evidence that would support a criminal prosecution. What occurred is disquieting and may necessitate corrective action — but it does not warrant criminal prosecution.”

The decision comes more than two years after the IRS’s internal watchdog reported that auditors singled out tea party groups’ applications for special scrutiny and delayed those applications beyond reasonable timelines, preventing the groups from being able to say they were officially recognized nonprofits.

The agency initially admitted its bad behavior, and President Obama vowed an investigation — but he later said, in the middle of the probe, that there was no evidence of corruption.

Some Republicans have questioned the validity of the probe from the beginning, after learning that one of the Justice Department lawyers assigned to the investigation was a contributor to Mr. Obama’s political campaigns.

In its letter Friday the Justice Department specifically cleared Ms. Lerner, a senior executive in charge of approving the groups’ applications, who had authored a number of emails that suggested a bias against the tea party movement.

Investigators said none of the witnesses they interviewed believed Ms. Lerner acted out of political motives, and said that Ms. Lerner seemed to try to correct the inappropriate scrutiny once she “recognized that it was wrong.”

“In fact, Ms. Lerner was the first IRS official to recognize the magnitude of the problem and to take concerted steps to fix it,” Mr. Kadzik wrote.

Congressional Democrats said the decision confirmed what they’d figured out years ago — that there was no underhanded political dealing at the agency.

“Over the past five years, Republicans in the House of Representatives have squandered literally tens of millions of dollars going down all kinds of investigative rabbit holes — IRS, Planned Parenthood, Benghazi — with absolutely no evidence of illegal activity,” said Rep. Elijah E. Cummings of Maryland, the top Democrat on the Benghazi investigation and ranking member of the House Oversight Committee.

The House Ways and Means Committee conducted its own investigation into the IRS’s tea party targeting, as did the Senate Finance Committee. The House panel was the one that voted to refer Ms. Lerner’s behavior to the Justice Department for criminal investigation.

Rep. Paul Ryan, the chairman of the Ways and Means Committee, called the Friday letter “deeply disappointing,” but said it wasn’t a surprise given the bent of the Obama administration.

He said his committee’s probe did find “serious and unprecedented actions” by Ms. Lerner that deprived tea party groups of their rights.

“The American people deserve better than this. Despite the DOJ closing its investigation, the Ways and Means Committee will continue to find answers and hold the IRS accountable for its actions,” he said.

Ms. Lerner’s lawyers, in a statement, said they were “gratified but not surprised” by the announcement.

“Anyone who takes a serious and impartial look at the facts would reach the same conclusion as the Justice Department,” they said, adding that she cooperated with the investigators and answered their questions.

That stands in contrast to her interaction with Congress, where she refused to answer questions, invoking her Fifth Amendment right to remain silent — but only after she delivered a statement declaring her innocence.

The House Oversight Committee concluded that she was not, in fact, able to invoke the Fifth Amendment at that point, and when she refused to answer questions, the House voted to hold her in contempt of Congress.

The Justice Department declined to pursue that case, too, arguing that her claim of Fifth Amendment rights was likely to succeed.

Groups that faced targeting by the IRS were infuriated by Friday’s decision.

“To say there is no evidence of discrimination makes a mockery of all we witnessed in the last two years,” said Catherine Engelbrecht, founder of True the Vote, which had its application for nonprofit status delayed as it and another group she was involved in faced scrutiny by everyone from the FBI to federal occupational health authorities.

More Calls For Koskinen’s Dismissal

Ron DeSantis (R., Fla.) chairman of the House Oversight and Government Reform Subcommittee on National Security and Jim Jordan (R., Ohio), chairman of the Subcommittee on Health Care, Benefits, and Administrative Rules, also recently called on President Obama to remove John Koskinen from the head of the IRS. Alternatively, they propose Congressional impeachment if Obama does not due his due diligence and remove Koskinen himself.

DeSantis and Jordan made their case in the pages of the Wall Street Journal and is reprinted below in its entirety, as it provided a thorough summation of Koskinen’s incompetence:

“Internal Revenue Service Commissioner John Koskinen needs to go.

When it was revealed in 2013 that the IRS had targeted conservative groups for exercising their First Amendment rights, President Obama correctly called the policy “inexcusable” and pledged accountability. He even fired the then-acting IRS commissioner because he said it was necessary to have “new leadership that can help restore confidence going forward.”

Unfortunately, Commissioner Koskinen, who took over in the wake of the IRS targeting scandal, has failed the American people by frustrating Congress’s attempts to ascertain the truth. A taxpayer would never get away with treating an IRS audit the way that IRS officials have treated the congressional investigation. Civil officers like Mr. Koskinen have historically been held to a higher standard than private citizens because they have fiduciary obligations to the public. The IRS and Mr. Koskinen have breached these basic fiduciary duties:

• Destruction of evidence. Lois Lerner, at the time the director of the IRS’s exempt-organizations unit, invoked the Fifth Amendment on May 22, 2013, when appearing before Congress; her refusal to testify put a premium on obtaining and reviewing her email communications. On the same day the IRS’s chief technology officer issued a preservation order that instructed IRS employees “not to destroy/wipe/reuse any of the existing backup tapes for email, or archiving of other information from IRS personal computers.”

Several weeks later, on Aug. 2, the House Oversight Committee issued its first subpoena for IRS documents, including all of Ms. Lerner’s emails. On Feb. 2, 2014, Kate Duval, the IRS commissioner’s counsel, identified a gap in the Lerner emails that were being collected. Days later, Ms. Duval learned that the gap had been caused in 2011 when the hard drive of Ms. Lerner’s computer crashed.

Despite all this—an internal IRS preservation order, a congressional subpoena, and knowledge about Ms. Lerner’s hard-drive and email problems—the Treasury inspector general for tax administration discovered that the agency on March 4, 2014, erased 422 backup tapes containing as many as 24,000 emails. (Congress learned of the discovery only last month.)

Ms. Duval has since left the IRS and now works at the State Department, where she is responsible for vetting Hillary Clinton’s emails sought by congressional investigations of the Benghazi attacks.

• Failure to inform Congress. Mr. Koskinen was made aware of the problems associated with Ms. Lerner’s emails the same month Ms. Duval discovered the gap. Yet the IRS withheld the information from Congress for four months, until June 13, 2014, when the agency used a Friday news dump to admit—on page seven of the third attachment to a letter sent to the Senate Finance Committee—that it had lost many of Ms. Lerner’s emails.

During that four-month delay, Mr. Koskinen testified before Congress under oath four times. On March 26, 2014, he appeared before the Oversight Committee and pledged that the IRS would produce all of Ms. Lerner’s emails, not mentioning that the IRS already knew of the problems with her emails and hard drive. Mr. Koskinen deliberately kept Congress in the dark. Based on testimony received by the committee, we now know that the IRS appears to have spent the four months working with the Obama administration to fine-tune talking points to mitigate the fallout.

• False testimony before Congress. Mr. Koskinen made statements to Congress that were categorically false. Of the more than 1,000 computer backup tapes discovered by the IRS inspector general, approximately 700 hadn’t been erased and contained relevant information. But Mr. Koskinen testified he had “confirmed” that all of the tapes were unrecoverable.

He also said: “We’ve gone to great lengths, spent a significant amount of money trying to make sure that there is no email that is required that has not been produced.” In reality, the inspector general found that Mr. Koskinen’s team failed to search several potential sources for Ms. Lerner’s emails, including the email server, her BlackBerry and the Martinsburg, W.Va., storage facility that housed the backup tapes.

The 700 intact backup tapes the inspector general recovered were found within 15 days of the IRS’s informing Congress that they were not recoverable. Employees from the inspector general’s office simply drove to Martinsburg and asked for the tapes. It turns out that the IRS had never even asked whether the tapes existed.

Three weeks after the 422 other backup tapes were destroyed by the IRS, Mr. Koskinen told the committee that he would produce “all” Lerner documents. This statement was clearly false—you can’t give Congress “all” of the material if you know that you have already destroyed some of it.

• Failure to correct the record. After his false statements to Congress under oath, Mr. Koskinen refused to amend them when given the opportunity at a public hearing earlier this year. If a lawyer makes a false statement to a court, he has a duty to correct it. Civil officers like Commissioner Koskinen have a duty to the American people to revise their testimony when it contains inaccuracies.

• Failure to reform the IRS to protect First Amendment rights. Mr. Koskinen hasn’t acted on the president’s May 2013 promise to “put in place new safeguards to make sure this kind of behavior cannot happen again.” A Government Accountability Office report released last week found that the IRS continues to lack the controls necessary to prevent unfair treatment of nonprofit groups on the basis of an “organization’s religious, educational, political, or other views.” In other words, the targeting of conservative groups may very well continue.

If the president doesn’t remove Mr. Koskinen from his post, then Congress should remove him through impeachment. The impeachment power is a political check that, as Alexander Hamilton wrote in Federalist No. 65 in 1788, protects the public against “the abuse or violation of some public trust.”

Supreme Court Justice Joseph Story echoed Hamilton in 1833 when he distinguished impeachable offenses from criminal offenses, noting that they “are aptly termed political offenses, growing out of personal misconduct or gross neglect, or usurpation, or habitual disregard for the public interests . . . They must be examined upon very broad and comprehensive principles of public policy and duty.”

John Koskinen has violated the public trust, breached his fiduciary obligations and demonstrated his unfitness to serve. Mr. President, it’s time for Commissioner Koskinen to go. If you don’t act, we will.”

Koskinen Should be Fired

Last month, Rep. Jason Chaffetz (R. Utah) wrote a letter regarding John Koskinen, the commissioner of the IRS, asking President Obama to remove him from his post. As the IRS is a part of the Department of the Treasury, it falls under the authority of Executive Branch.

Chaffetz rightly calls out Koskinen for “obstruction” with regard to the various congressional investigations, which have revealed bungled IRS responses to repeated inquiries. At the time of his letter in late July, it had recently been revealed that IRS workers destroyed Lerner’s backup tapes from 2010-2011, losing 24,000 emails in the processes.

Chaffetz has it right. Even now, a month after calling on Obama to dismiss Koskinen, there have been even more revelations of IRS misconduct. This include that fact that 10 groups have still yet to be approved for tax-exempt status — with some waiting as long as 5 years — due to a “backlog of cases”. Even more egregiously, the IRS only revealed last week during court proceedings that Lois Lerner used a second, private email account with the alias “Toby Miles” to conduct IRS business (on top of her IRS email and another private email account). The fact that after years into the investigations, only last week this information was disclosed to the public shows an unrepentant IRS.

If Obama is unwilling to actually dismiss Koskinen from his deplorable actions, it shows he lacks the fortitude to fix the critical problems at the IRS. In fact, it proves that he really is the root of the problem.

TIGTA to IRS: You Got (More) Mail!

The Treasury Inspector General for Tax Administration (TIGTA) found even more missing emails from Lois Lerner among the recycled back-up tapes, which has provided now about 35,000 emails that were deemed lost and destroyed.

This new batch of roughly 6,400 emails is particularly interesting, because it spans 2004- 2013, so it covers the time frame both before and after Lerner’s hard drive crashed in 2011. About 650 emails appear to be from 2010-2011, which is the crucial time during which Lerner’s IRS targeted conservatives groups by denying or prolonging their 501c4 application process.

The bulk of the emails, however, are from 2012. 2012 was the presidential election year. However, by early 2012, we already know that Lerner was instructing her workers to be careful about what they put into writing.

An email written in February 2012 — which was released by Judicial Watch and not part of the newly found emails — reveals a conversation between Lois Lerner and Holly Paz, one of her employees who served as the former Director of the Office of Rulings and Agreements. Paz’s position as Director of the Office of Rulings and Agreements meant that she “oversaw the tax law specialists who provided guidance to the agents in Cincinnati reviewing “tea party” and other applicants, as well as the department involved with processing the applications.” In Lerner’s email to Paz, she discusses training her employees to be mindful of what they write down:

“We are all a bit concerned about the mention of specific Congress people, practitioners and political parties. Our filed folks are not as sensitive as we are to the fact that anything we write can be public–or at least be seen by Congress. We talked with Nan [Downing – Director of EO Examinations] and she thought it would be great if R & A [Rulings and Agreements] could put together some training points to help them understand the potential pitfalls…

I realize everyone is very busy, but I’d like you and Tom [Miller EO adviser] to get together to work out a reasonable plan for completing the review and reporting back on some of the issues he thinks we’d need to cover. If you need more info, we can talk. Thanks”

If Lerner was mindful by then of written records, what the new Lerner emails could reveal might depend on who they were going to. However, Lerner was apparently not entirely so concerned about covering up everything, because other separate FOIA records have revealed emails between Lerner’s office and other government groups and officials.

For instance that in 2012 and 2013, Elijah Cummings and the IRS were in communication. In April 2014, it was reported that the “House Oversight Committee show staff working for Democratic Ranking Member Elijah Cummings communicated with the IRS multiple times between 2012 and 2013 about voter fraud prevention group True the Vote. True the Vote was targeted by the IRS after applying for tax exempt status more than two years ago. Further, information shows the IRS and Cummings’ staff asked for nearly identical information from True the Vote President Catherine Engelbrecht about her organization, indicating coordination and improper sharing of confidential taxpayer information.”

What’s more, the same Holly Paz mentioned earlier colluded with Lerner to provide True the Vote’s 990’s to Cumming’s staff in early 2013: “On January 28, three days after staffers requested more information, Lerner wrote an email to her deputy Holly Paz, who has since been put on administrative leave, asking, “Did we find anything?” Paz responded immediately by saying information had not been found yet, to which Lerner replied, “Thanks, check tomorrow please.” The 990’s were sent three days later.

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Similarly, in 2013, it has been noted that Lerner was in communication with the Department of Justice regarding prosecuting tax exempt groups. A email obtained by a FOIA request, written by Lerner just two days before the IRS scandal broke in May 2013, stated,

“I got a call today from Richard Pilger Director Elections Crimes Branch at DOJ … He wanted to know who at IRS the DOJ folk s [sic] could talk to about Sen. Whitehouse idea at the hearing that DOJ could piece together false statement cases about applicants who “lied” on their 1024s –saying they weren’t planning on doing political activity, and then turning around and making large visible political expenditures. DOJ is feeling like it needs to respond, but want to talk to the right folks at IRS to see whether there are impediments from our side and what, if any damage this might do to IRS programs. I told him that sounded like we might need several folks from IRS,” Lerner wrote in a May 8, 2013 email to former Nikole C. Flax, who was former-Acting IRS Commissioner Steven T. Miller’s chief of staff.

“I think we should do it – also need to include CI [Criminal Investigation Division], which we can help coordinate. Also, we need to reach out to FEC. Does it make sense to consider including them in this or keep it separate?” Flax responded on May 9, 2013.”

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Incidentally, that wouldn’t be the first time Lerner explored such a scenario with the DoJ, and Pilger in particular; she did so even way back in 2010. National Review reported last June that “The Internal Revenue Service may have been caught violating federal tax law. In October 2010, the agency sent a database on 501(c)(4) social-welfare groups containing confidential taxpayer information to the Federal Bureau of Investigation, according to documents obtained by a House panel.

The information was transmitted in advance of former IRS official Lois Lerner’s meeting the same month with Justice Department officials about the possibility of using campaign-finance laws to prosecute certain nonprofit groups. E-mails between Lerner and Richard Pilger, the director of the Justice Department’s election-crimes branch, obtained through a subpoena to Attorney General Eric Holder, show Lerner asking about the format in which the FBI preferred the data to be sent”.

The Department of Justice never formally did anything to the social welfare groups, but it was shortly thereafter that targeting was begun by Lerner — not to current 501c4s, but new groups applying for status. “E-mails cited in a committee report released in March [2014] show that the [Citizen’s United] decision caused a lot of angst for Lerner and her colleagues in the IRS’s Exempt Organizations division, and she noted in public remarks that the agency was under pressure to “fix the problem” created by the decision.”

TIGTA is expected to release its report later this year on all the missing 35,000 emails, which will include this new-found batch. After TIGTA’s report comes out, a second report by a bipartisan Congressional committee will also be released, and the public will be able to see more clearly what Lerner was trying to hide when she discarded her computer hard drives.

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IG Watchdog Has Located Tens of Thousands of Lost Lerner Emails

Tens of thousands of Lerner emails have been found by the U.S. Treasury Inspector General for Tax Administration (TIGTA). This past Friday, TIGTA announced to congressional staffers that they were located “among hundreds of “disaster recovery tapes” that were used to back up the IRS email system.”, and that it “took them several weeks and some forensic effort to get these emails off these tapes”. TIGTA has estimated it could contain nearly 30,000 emails.

The emails date back to 2009 – 2011, an important time frame for the IRS scandal. This covers specifically the era during which Lois Lerner, as head of the IRS exempt-organizations division, engaged in targeting of conservative and Tea Party organizations which sought tax-exempt status ahead of the 2012 Presidential elections. Lerner claimed her computer crashed in Spring 2011, and the IRS declared those emails “lost”.

Washington Examiner noted that this past June, IRS Commissioner John Koskinen testified before Congress that the disaster recovery tapes — the ones recovered — only hold data for about six months, and “even if the IRS had sought the emails within the six-month period, it would have been a complicated and difficult process to produce them from the tapes.”

On the contrary, TIGTA has examined 744 tapes so far, and they are not finished, but have found an estimated 250 emails on the various tapes. Besides the estimated 30,000 of Lerner’s emails, TIGTA surmised that it is likely more missing emails will be recovered from the slew of other IRS workers who also experienced computer crashes.

The IRS issued a statement as a response to the TIGTA find, stating, “the IRS welcomes TIGTA’s independent review and expert forensic analysis. Commissioner Koskinen has said for some time he would be pleased if additional Lois Lerner emails from this time frame could be found.”

This is a ridiculous statement, as it was revealed just a couple of weeks ago from court documents pertaining to an IRS lawsuit over the matter, that the IRS hadn’t even bothered to look for the emails. In the document, the IRS wrote that they have not searched IRS servers because “the servers would not result in the recovery of any information.” The IRS further claimed no search was performed on the back-up tapes, because there was “no reason to believe that the tapes are a potential source of recovering” any lost emails.

Rep. Darrell Issa, who is overseeing the process, spoke about the IRS’s behavior upon hearing of the TIGTA find. “This discovery also underscores the lack of cooperation Congress has received from the IRS. The agency first failed to disclose the loss to Congress and then tried to declare Lerner’s emails gone and lost forever. Once again it appears the IRS hasn’t been straight with Congress and the American people.”

Issa also stated that the “The Oversight Committee will be looking for information about her mindset and who she was communicating with outside the IRS during a critical period of time when the IRS was targeting conservative groups”, once the emails have gone through the proper redacting process by TIGTA to make sure taxpayer information remains protected. It is expected to take several more weeks before the tapes are ready for presentation to Congress.

It appears that the IRS was playing a huge game of chicken and just lost. They were betting that the public and Congress and TIGTA would not expend the time and money to bother combing through the disaster recovery tapes, and that we would just take their word for it that the emails were lost. More obfuscation from the “most transparent Administration ever”.