Imagine you approach a Hollywood executive with the following script idea: A powerful federal agency goes rogue. It targets political opponents with extraordinary investigations, targets opponents for audits, tries to throw opponents in jail, targets politicians who try to investigate its wrongdoing, and even attempts to monitor the prayers of the faithful. Then, just when investigators close in on the wrongdoers, they suddenly disclose that they’ve “lost” all the relevant evidence. The movie would never be made. Why not? Because it’s too cartoonish, too absurd to be believable. But in the modern IRS, truth is truly stranger than fiction.
The IRS Tried to Criminalize Conservative Speech
In perhaps the most ominous development of all, the IRS was not content with merely delaying and harassing Tea Parties and other conservative groups, not content with auditing conservative individuals, and certainly not content with investigating the prayer meetings of pro-life groups. To truly advance the Obama administration’s agenda, the IRS needed to do more.
It needed criminal prosecutions—even if there was no evidence of a crime.
In early 2014, Judicial Watch uncovered a key email exchange between Lois Lerner and Nikole Flax, the former IRS commissioner’s chief of staff.38
To be clear, the words you’re about to read were written just days before Lois Lerner offered her insincere, misleading apology for targeting the Tea Party:
I got a call today from Richard Pilger Director Elections Crimes Branch at DOJ. I know him from contacts from my days there. He wanted to know who at IRS the DOJ folks could talk to about [Rhode Island Democrat] 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. I am out of town all next week, so wanted to reach out and see who you think would be right for such a meeting and also hand this off to Nan as contact person if things need to happen while I am gone— 39
Here was Ms. Flax’s response:
I think we should do it—also need to include CI, 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? 40
For those not familiar with the bureaucratic language of these emails, Lerner is telling Flax that she spoke with the Department of Justice about prosecuting conservative nonprofits, but not because there were any credible complaints of wrongdoing but only because a liberal senator (Sheldon Whitehouse of Rhode Island) was demanding IRS action.
The phrase “piece together” is government-speak for “make up.” They were going to make up cases against conservatives—send people to jail because the IRS hated their speech. And rather than immediately condemn this idea, Flax endorsed it and even suggested expanding it to the Federal Election Commission. The earlier reference to “CI” is the Criminal Investigative Division. So there you have it: the real lawbreakers are the IRS and DOJ, which have conspired to deny our clients’ constitutionally protected rights.
Simply put, this is the kind of behavior that one expects from the bad old days of East German politics or contemporary Cuba, where the government regime finds ways to concoct prosecutions against its opponents.
This was an unparalleled, unprecedented attempt to stifle political expression through the use of grand jury indictments and prosecutions without a shred of evidence. Fortunately, they were caught before they could bring any charges.
Lest anyone think this was simply an isolated exchange—just a few bureaucrats harmlessly brainstorming—it’s clear that the IRS had long been committed to taking criminal action against the Tea Party.
In October 2010 the IRS sent a whopping total of 1.1 million pages of taxpayer files to the FBI in advance of a meeting to discuss potential criminal prosecutions against nonprofit groups.41 According to National Review, many of these documents likely contained confidential taxpayer information. This means the IRS was not only attempting to prosecute dissent; it was violating its own governing statutes and regulations to do so.
It’s hard to overstate the gravity of these revelations. Few things are more chilling than the prospect of federal criminal prosecution, and facing such a prospect for merely forming a group that, say, opposes ObamaCare or abortion is an unspeakable violation of the letter and spirit of the Constitution.
But that’s not all, of course.
The IRS “Loses” the Evidence
Imagine you approach a Hollywood executive with the following script idea: A powerful federal agency goes rogue. It targets political opponents with extraordinary investigations, targets opponents for audits, tries to throw opponents in jail, targets politicians who try to investigate its wrongdoing, and even attempts to monitor the prayers of the faithful. Then, just when investigators close in on the wrongdoers, they suddenly disclose that they’ve “lost” all the relevant evidence.
The movie would never be made. Why not? Because it’s too cartoonish, too absurd to be believable.
But in the modern IRS, truth is truly stranger than fiction.
On Friday, June 13, 2014, the House Ways and Means Committee reported that the IRS “lost” emails from Lois Lerner, the top IRS official at the center of the targeting of conservative groups.42
Incredibly, the supposedly “lost” emails are from “January 2009–April 2011”—the exact heart of the IRS targeting scandal, when hundreds of conservative groups applied for tax-exempt status and were intentionally slow-rolled as intrusive questionnaires were developed, when Lois Lerner was attempting to jump-start frivolous criminal investigations, when the IRS was working from top to bottom to crush the conservative movement.
Even more conveniently, all emails during the period “to and from” Lerner involving “outside agencies or groups, such as the White House, Treasury, Department of Justice, FEC, or Democrat offices” are gone—because of an alleged “computer crash.”
A computer crash.
Never mind, of course, that government emails are not housed on individual hard drives but instead on the IRS exchange servers. Never mind that the exchange servers were backed up every six months. The emails were gone.
Even worse, the IRS discovered this alleged loss only weeks after promising Congress it would produce all of Lois Lerner’s emails, even after it allegedly knew the emails were gone.
House Ways and Means chairman Dave Camp was justifiably outraged:
The fact that I am just learning about this, over a year into the investigation, is completely unacceptable and now calls into question the credibility of the IRS’s response to Congressional inquiries. There needs to be an immediate investigation and forensic audit by Department of Justice as well as the Inspector General.
Just a short time ago, [IRS] Commissioner [John] Koskinen promised to produce all Lerner documents. It appears now that was an empty promise. Frankly, these are the critical years of the targeting of conservative groups that could explain who knew what when, and what, if any, coordination there was between agencies. Instead, because of this loss of documents, we are conveniently left to believe that Lois Lerner acted alone. This failure of the IRS requires the White House, which promised to get to the bottom of this, to do an Administration-wide search and production of any emails to or from Lois Lerner. The Administration has repeatedly referred us back to the IRS for production of materials. It is clear that is wholly insufficient when it comes to determining the full scope of the violation of taxpayer rights.43
Jay Sekulow is Chief Counsel of the American Center for Law and Justice (ACLJ), which focuses on constitutional law. The ACLJ represents dozens of organizations that were unlawfully targeted by the IRS. Jay is a New York Times bestselling author. His latest book “UNDEMOCRATIC: How Unelected, Unaccountable Bureaucrats Are Stealing Your Liberty and Freedom” is available now. He hosts “Jay Sekulow Live”– a daily radio show which is broadcast on more than 850 stations nationwide as well as Sirius/XM satellite radio. Follow him on Twitter @JaySekulow.
Excerpt provided by Howard Books, an imprint of Simon & Schuster.
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