Real and Perceived Bias in the IRS Investigation

COMMENTARY Crime and Justice

Real and Perceived Bias in the IRS Investigation

Jan 10th, 2014 2 min read
Hans A. von Spakovsky

Election Law Reform Initiative and Senior Legal Fellow

Hans von Spakovsky is an authority on a wide range of issues – including civil rights, civil justice, the First Amendment, immigration.

Taking a lawyer off a particular case because of a possible conflict of interest is not a “prohibited personnel practice” like firing, terminating, or changing the pay of someone for political reasons. Indeed, Justice Department regulations (28 CFR 45.2) clearly state that DOJ lawyers must avoid even “an appearance of a conflict of interest likely to affect the public perception of the integrity” of an investigation or prosecution.

No one questions the right of career employees to make political donations. This is allowed under the Hatch Act and applicable DOJ regulations, as explained by the department’s Ethics Office. But Bosserman’s considerable campaign contributions certainly raise the appearance of a possible conflict of interest in her ability to make unbiased, objective decisions in an investigation that could prove very embarrassing to the president she supports.

Contrary to Iverson’s claim, the Justice Department has previously acted in the exact way she now says it cannot. During the investigation into the unjustified dismissal of the New Black Panther Party voter intimidation case by the Justice Department’ s Office of Professional Responsibility, OPR removed the first career lawyer assigned to the investigation, Mary Aubry, after reports surfaced that she had contributed more than $7,000 (almost the same amount as Bosserman) to the Democratic party and Democratic candidates including Barack Obama. In fact, two veterans of the Civil Rights Division told me that DOJ removes attorneys from cases all the time for such perceived possible conflicts of interest. One of them also told me that Bosserman was more of a “research” attorney who almost never goes to court, which seems an odd choice to head up such a significant investigation.

Given what happened in the IRS case, especially the suspicion that conservative organizations were specifically targeted by IRS officials to help dampen public opposition to President Obama’s reelection, the Justice Department should be making every effort to conduct an objective investigation and avoid any questions about the objectivity of the staff involved.

And it’s not just conservatives who think so: DOJ inspector general Michael Horowitz sent a memorandum to Eric Holder in December reminding him that “public trust in the Department, its senior officials, and its employees is essential to every aspect of the Department’s operations.” One of the biggest challenges, according to Horowitz, is the Civil Rights Division, where Bosserman works. The Office of the Inspector General reported that the way the division has handled cases “risked undermining public confidence in the non-ideological enforcement” of federal law.

The appearance of possible bias by the lead lawyer in this investigation is a very serious issue. The Justice Department’s spokeswoman attempted to dismiss it out of hand, but the rationale she offered is completely spurious. In fact, failing to properly resolve the situation will call into question the integrity of not just this case, but the entire Department of Justice.

 - Hans von Spakovsky is a senior legal fellow at the Heritage Foundation and the former counsel to the assistant attorney general for civil rights at the Justice Department.

Originally appeared in the National Review Online