Category Archives: IRS

Where’s Jim Comey?

Where is the “all concerned about Americans’ rights” press?????????
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Congressional investigators keep uncovering troubling facts in the IRS political targeting scandal, which makes us wonder: Where is that independent and intrepid G-Man James Comey ?

The FBI director told the HouseJudiciary Committee on June 11 that his agency’s IRS investigation—ordered a year ago by Attorney General Eric Holder —is still “very active” and “something I get briefed on a regular basis.” We’d like to know how he defines “regular” because two days later the IRS finally disclosed that it had “lost” emails sent by former IRS tax-exempt chief Lois Lerner and six other IRS employees. Mr. Comey failed to disclose this mysterious loss of evidence in his testimony.

Some in Congress are beginning to wonder if there is any investigation at all. Ohio Rep. Jim Jordan noted in a letter to Mr. Comey last month that “one of the FBI’s first actions in its criminal investigation” should be “to identify and seize all documents relating to Ms. Lerner.” Had it done so, the FBI would have known a year ago that Ms. Lerner’s emails had gone walkabout.

We now know that the IRS told Treasury and the White House about the missing emails in April—yet the Obama Administration withheld that information from Congress and the public. Did the FBI know too?

IRS Commissioner John Koskinen has testified that he didn’t tell the FBI about the missing emails. But if that’s the case, why aren’t the G-men shouting to high heaven? If the FBI discovered a private company had withheld documents in the course of a federal investigation, the handcuffs would be flashing. The FBI’s gumshoes seem to be remarkably relaxed about getting IRS answers.

Ditto the rest of the Justice Department. Congress learned in January that Justice assigned the IRS probe to an Obama donor, Barbara Bosserman, an attorney in the Civil Rights Division. Justice has refused to reassign the case—despite her political conflict of interest—and Ms. Bosserman has so far turned up nothing.

Then there’s the House’s May 7 contempt citation against Ms. Lerner. The section of the U.S. code governing contempt is clear: The House votes and then the Speaker sends the citation to the appropriate U.S. Attorney, “whose duty it shall be to bring the matter before the grand jury for its action.” U.S. Attorney for the District of Columbia Ron Machen has possessed that citation for eight weeks, yet his spokesman told us in late June that the matter is “still under review.”

What’s to review? Under the statute, Mr. Machen—an Obama appointee—has no role in analyzing the merits of the citation. His duty is to get it to a grand jury. Administrations have in the past directed U.S. Attorneys not to proceed—as the Obama White House did in a citation against Mr. Holder, and the Bush Administration did in citations against Harriet Miers and Josh Bolten. But unless the Obama White House is now stepping up to give Ms. Lerner special immunity from prosecution—she took the Fifth rather than testify to Congress—Mr. Machen’s job is clear.

Mr. Jordan is asking Mr. Comey to explain what the FBI knew and when, and that’s the least he owes the taxpaying public. In his Judiciary testimony, Mr. Comey said Americans should trust his agency “because of what they know about the FBI.” On the public evidence so far, Mr. Comey should worry that he is damaging his reputation—and the FBI’s.

Where’s Jim Comey? – WSJ.

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A Tale of Two Scandals

I do wonder how my friends and detractors on the left simply let this issue (IRS manipulation of conservative organizations) slide. Or wish it away. It has serious implications for THIS COUNTRY.
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Forty-one years ago, during a small and largely ignored government scandal, a great mystery occurred. A group of determined congressional investigators, who had learned the president of the United States was running a voice-activated taping system in the Oval Office, pressed to get their hands on the tapes. The courts ruled in their favor. The White House had to hand over a number of tapes. But it turned out one of them, which was understood by the timeline to potentially be the key one, the one that might reveal exactly how the scandal began, turned out to have an 18½-minute gap.

It came to pass that the longtime personal secretary of the president, Rose Mary Woods, who had been transcribing the tapes in preparation for turning them over, said she had made “a terrible mistake.” She had been listening to the tape when the phone rang; she turned, picked it up, meant to hit the stop button on the tape recorder but hit the record button instead, spoke on the phone for five minutes and when the conversation was over found that five minutes of the tape had been recorded over. Later, and doubly mysterious, it turned out that a total of 18½ minutes of the tape had been erased. No one knows to this day how that happened. The president’s chief of staff, Alexander Haig, once mused it might have been the work of some “sinister force.”

A few members of Congress went mad with fury, but nobody else really noticed or cared. It was a time of such drama—Vietnam, student demonstrations, a cascade of other scandals to distract the attention of the press. So everyone ignored what happened with the tape, and the Watergate scandal, as it was called, did not end in the impeachment of a president. It just went away, in time became “old news.” Well, the president had said there was “not even a smidgen” of corruption in the story, so there you are.
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Ha, wait, that’s not what happened.

The 18½ minutes of destroyed evidence had a galvanizing effect on an already galvanized national scandal. Rose Mary Woods was hauled before a grand jury, questioned, derided, called a pawn in a criminal coverup. She endured for the rest of her life what the New York Times in its obituary called a “hideous, disfiguring fame.”

And Richard Nixon’s government of course came crashing down, as did he.

Why is this pertinent?

Because the Obama administration is experiencing what appears to be its own Eighteen-and-a-Half Minute moment. In a truly stunning development in the Internal Revenue Service scandal, the agency last week informed Congress that more than two years’ of Lois Lerner’s email communications with those outside that agency—from 2009 to 2011, meaning the key years at the heart of the targeting-of-conservatives scandal—have gone missing. Quite strangely. The IRS says it cannot locate them. The reason is that Lerner’s computer crashed.

What are the implications of this claim? It means no one can see any emails Lerner sent to or received from other agencies and individuals, including the White House and members of Congress.

And what is amazing—not surprising, but amazing—is that if my experience of normal human conversation the past few days is any guide, very few people are talking about it and almost no one cares.

The IRS scandal as a news story carries a stigma, and the stigma is in part due to the fact that when it broke, when Lois Lerner last year made her admission, with a planted question at an American Bar Association gathering, that the IRS had made some mistakes with conservative groups, and disingenuously suggested the blame lay with incompetents in a field office far from the Beltway, conservatives and partisans jumped. The mainstream press was inclined to believe Lerner, or believe at least that a series of mistakes had produced a small if embarrassing so-called scandal. Some conservatives, activists and partisans, not all of them sincere and not all of them serious, viewed the story primarily as another cudgel to use against the president and his party. Some no doubt viewed it as a fundraising opportunity.

The press viewed it not as a story but as a partisan political drama. And in partisan political dramas they are very rarely on the Republican side.

I haven’t ever met a reporter or producer who wasn’t a conservative who didn’t believe the IRS scandal was the result of the bureaucratic confusion and incompetence of some office workers in Cincinnati who made a mistake.

But the IRS scandal is a scandal, and if you can’t see the relation between a strangely destroyed key piece of evidence in an ongoing scandal and what happened 41 years ago with a strangely destroyed key piece of evidence in an ongoing scandal, something is wrong not with the story but with your news judgment. (We won’t even go into the second story last week, that the IRS sent a big database full of confidential taxpayer information to the FBI.)

It would be very good to see the mainstream press call for a special prosecutor, fully armed with the powers to get to the bottom of the case.

Democrats don’t want this for the obvious reasons, and Republicans on the Hill haven’t wanted it because they want all the attention while they hold hearings. Why share the lights with a boring old independent investigator who’ll take his time? But the very number of hearings and their lack of effect makes Republicans look worse than incompetent workers in a field office. They have proved themselves no match for the administration, which runs circles around them delaying documentation and testifying in incomprehensible gobbledygook.

Moreover, Republicans are probably wrong that they help themselves with the base by showily going after the administration. Eric Cantor long supported Congressional prerogatives here before changing his mind just a month ago, and look where he is.
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The mischief of the Nixon administration was specific to it, to its personnel. When Chuck Colson left, he left. All the figures in that drama failed to permanently disfigure the edifice of government. They got caught, and their particular brand of mischief ended.

But the IRS scandal is different, because if it isn’t stopped—if it isn’t fully uncovered, exposed, and its instigators held accountable—it will suggest an acceptance of the politicization of the IRS, and an expected and assumed partisanship within its future actions. That will be terrible not only for citizens but for the government itself.

And the IRS scandal will also have disfigured government in a new and killing way. IRS scandals in the past were about the powerful (Richard Nixon) abusing the powerful (Edward Bennett Williams). This scandal is about the powerful (Lois Lerner, et a.) abusing the not-powerful (normal, on-the-ground Americans such as rural tea-party groups). If it comes to be understood that this kind of thing is how the government now does business, it will be terrible for the spirit and reality of the country.

So many of those who decide what is news cannot, on this issue, see the good faith and honest concern of the many who make this warning. And really, that is tragic.
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We end with an idea and a bonus memory.

It might be fun and instructive if a great wit did a fictional diary of Lois Lerner’s computer. Assuming that apart from being a U.S. government agency administrator she’s also a grim political operative; assuming that some part of her imagination told her that sooner or later the jig will be up, that internal investigators are coming; assuming it occurred to her that a number of unfortunately incriminating emails might be found on her computer; and assuming she is not technologically clever. What might it have been like that sultry summer of ’11, when Lois Lerner decided her computer had to go? Maybe she put it in the microwave, on high, for 13½ minutes. Maybe she tried to drown the computer in a pool. Maybe she took a hammer to it, like Kathy Bates in “Misery.” Maybe she had a merlot and cooked it over a little Sterno can on the buffet table outside. Maybe she ordered it to answer questions and it took the Fifth. (Maybe it turns out the National Security Agency has the emails. Maybe Edward Snowden can get them!)

The memory:

I once met Rose Mary Woods at a gathering of old Nixon hands in the Reagan White House. I think it was a small party for Pat Buchanan, the communications director. It would have been the mid-1980s, more than a decade after Watergate. I turned and there was a fit, diminutive woman of perhaps 70, in a bright-patterned knee-length dress and matching jacket. Her reddish hair was in a bouffant. Her heels were light-colored, beige or white. She looked like a handsome lady of the Nixon era. She was cordial, friendly, but with the warmly guarded look of the accidentally infamous.

I remember it because about that time I was writing a book and pondering a certain magical aspect of the White House: At any given moment you might turn and see a human ghost, someone who’d been powerful or celebrated who had left, returned to life, and suddenly was back where he’d been a generation or two or three before.

They live in your imagination, they’re of another era, and suddenly they’re there, smiling over a glass of white wine.

Woods’s friends always believed her about the tapes, that she’d made an honest five-minute mistake. (They weren’t sure about the rest of it, the other 13½ minutes.) She was hardy and tough but had integrity and judgment—she wasn’t some grubby political operative who’d do or say anything. She probably turned down millions to write things like “The Dark Nixon I Knew,” for which in those days there was quite an appetite.

She died in her native Ohio in January 2005. At the end of that year, in a beautifully written (meaning beautifully thought and integrated) Christmas Day remembrance in the New York Times, Francis Wilkinson captured her high spirits when she was working for Richard Nixon in the 1950s and would end the day with officemates dancing at a local hotel. “In high-heeled shoes with ankle straps . . . Woods was a joyful sight, cutting loose after a 12-hour grind at the vice president’s side.”

She was one of those usually unknown people who populate government, who come from throughout the country drawn to Washington and wanting to help, wanting the sense of consequence and drama and meaning it can impart, who do their jobs well for many decades, who know what they know and then, eventually, go home. Those were good days, when everybody went home.

A Tale of Two Scandals – Peggy Noonan's Blog – WSJ.

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IRS Lost Email Jeopardy

And the press, who hold to their sacred duty to expose Govt ‘mis-management’, is total absent this discussion.
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The IRS is spinning a tale of bureaucratic incompetence to explain the vanishing emails from former Tax Exempt Organizations doyenne Lois Lerner and six other IRS employees. We have less faith by the minute that there is an innocent explanation for this failure to cooperate with Congress, but even if true it doesn’t matter. The IRS was under a legal obligation to retain the information because of a litigation hold.

In 2009 a pro-Israel group called Z Street applied to the IRS for tax-exempt status. When the process was delayed, an IRS agent told the group that its application was undergoing special review because “these cases are being sent to a special unit in the D.C. office to determine whether the organization’s activities contradict the Administration’s public policies.” In August 2010 Z Street sued the IRS on grounds that this selective processing of its application amounted to viewpoint discrimination.

Under the Federal Rules of Civil Procedure and legal precedent, once the suit was filed the IRS was required to preserve all evidence relevant to the viewpoint-discrimination charge. That means that no matter what dog ate Lois Lerner’s hard drive or what the IRS habit was of recycling the tapes used to back up its email records of taxpayer information, it had a legal duty not to destroy the evidence in ongoing litigation.

In private white-collar cases, companies facing a lawsuit routinely operate under what is known as a “litigation hold,” instructing employees to affirmatively retain all documents related to the potential litigation. A failure to do that and any resulting document loss amounts to what is called “willful spoliation,” or deliberate destruction of evidence if any of the destroyed documents were potentially relevant to the litigation.

At the IRS, that requirement applied to all correspondence regarding Z Street, as well as to information related to the vetting of conservative groups whose applications for tax-exempt status were delayed during an election season. Instead, and incredibly, the IRS cancelled its contract with email-archiving firm Sonasoft shortly after Ms. Lerner’s computer “crash” in June 2011.

In the federal District of Columbia circuit where Z Street’s case is now pending, the operating legal obligation is that “negligent or reckless spoliation of evidence is an independent and actionable tort.” In a 2011 case a D.C. district court also noted that “Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.”

The government’s duty is equally pressing. “When the United States comes into court as a party in a civil suit, it is subject to the Federal Rules of Civil Procedure as any other litigant,” the Court of Federal Claims ruled in 2007. The responsibility to preserve evidence should have been a topic of conversation between the IRS chief counsel’s office and the Justice Department lawyers assigned to handle the Z Street case.

As it happens, the IRS also had a duty to notify Congress if it learned that discoverable evidence had been lost or destroyed. We now know that the IRS has been aware of Lois Lerner’s lost emails since at least February, but IRS Commissioner John Koskinen failed to mention this in his congressional testimony on March 26, saying instead that the IRS was fully cooperating with congressional requests.

Since the email destruction story broke, the IRS has pushed the narrative that losing or recycling emails was no big deal for the agency that wields the government’s fearsome taxing power. The agency isn’t nearly as cavalier about the responsibilities of groups whose tax status it handles.

One tax-exempt group represented by Washington lawyer Cleta Mitchell had a policy of retaining documents for one year. But under a deal insisted upon by the IRS, the group had to retain correspondence such as email for three years and permanently for “legal or important matters,” or it risked losing its tax-exempt status.

So much for the IRS living by its own rules, and on Tuesday at a House Oversight and Government Reform hearing we learned of another IRS legal failure. Archivist of the United States David Ferriero said the IRS “did not follow the law” when it failed to report the loss of Lois Lerner’s emails. All federal agencies are “required to notify us when they realize they have a problem that could be destruction or disposal, unauthorized disposal” of federal records, he said.

Attorney General Eric Holder won’t name a special prosecutor, but there’s still plenty of room for the judge in the Z Street case to force the IRS to explain and answer for its “willful spoliation” of email evidence.

IRS Lost Email Jeopardy – WSJ.

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We also seek access …

June 17, 2014 7:18 p.m. ET

From a June 16 letter sent by Cleta Mitchell, attorney for True the Vote, to the Justice Department. TTV sued the IRS over alleged harassment in 2013:

Late Friday, the IRS apparently advised the Ways & Means Committee that the IRS has “lost” Lois Lerner’s hard drive which includes thousands of Defendant Lerner’s e-mail records. However, several statutes and regulations require that the records be accessible by the Committees, and, in turn, must be preserved and made available to TTV [True the Vote] in the event of discovery in the pending litigation. . . . We are deeply troubled by this news and . . . seek your consent to immediately allow a computer forensics expert selected by TTV to examine the computer(s) that is or are purportedly the source of Ms. Lerner’s “lost” emails, including cloning the hard drives, and to attempt to restore what was supposedly “lost,” and to seek to restore any and all “lost” evidence pertinent to this litigation.

We also seek access to all computers, both official and personal, used by any and all of the Defendants from and after July 1, 2010, in order to ensure preservation of the documents of all Defendants in this action.

We wish to resolve our concerns amicably but, absent your consent, we will file such motions as deemed necessary and appropriate asking the Court to require that you respond to the questions contained in this letter, and to permit such forensic examination described herein and for such other relief as may be appropriate for this egregious breach of legal authority and professional ethics.

Notable & Quotable – WSJ.

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I'm serious… usually. (Martin Rossol)