Why Are Trump’s Justice Department Appointees Protecting the IRS?

COMMENTARY Government Regulation

Why Are Trump’s Justice Department Appointees Protecting the IRS?

Aug 23, 2017 4 min read
Hans A. von Spakovsky

Election Law Reform Initiative Manager, Senior Legal Fellow

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration.
Acting Assistant Attorney General David Hubbert has defended the IRS from investigation, saying the tea party groups’ lawsuit should be thrown out. Carlo Allegri/REUTERS/Newscom

Various media sources have reported that federal district court Judge Reggie Walton has ordered the IRS to finally respond to various legal requests for information and documents made by the conservative Tea Party organizations that sued the agency.

But the question that no one is asking is why that order was even necessary, and why the Justice Department, which is now supposedly under the control and authority of the new administration, hasn’t reversed its obstinate, inflexible, and stubborn defense of the IRS.

It was over four years ago that the inspector general for tax administration at the Treasury Department released a report detailing that the IRS had targeted conservative nonprofit organizations seeking tax-exempt status, and that then IRS employee Lois Lerner admitted what had been happening at an American Bar Association meeting in Washington.

The inspector general report found that officials were delaying the processing of applications and requesting voluminous, unnecessary, and irrelevant information, due to the perceived opposition of the nonprofits to liberal policies being promulgated by President Barack Obama and their association with the Tea Party movement.

The IRS targeting also included, according to an internal memo, any organization “involved in limiting/expanding government [and] educating on the Constitution and Bill of Rights.”

Apparently, the IRS considered educating Americans about their constitutional rights something that should be impeded.

Dozens of organizations, including Linchpins of Liberty and Tea Party groups as geographically dispersed as the Honolulu Tea Party and the Myrtle Beach Tea Party, filed a federal lawsuit in May 2013 in the District of Columbia.

Ever since then, the Tax Division of the Justice Department, which is currently headed by Acting Assistant Attorney General David A. Hubbert, has put up a mulish fight defending the IRS, including doing everything it can to prevent the IRS from having to provide any of the information and documentation that the plaintiffs are seeking about the targeting.

On Aug. 15, Walton held a hearing on the discovery battle that the Justice Department has been waging. At the hearing, according to the Washington Times and Fox News, Walton told the Justice Department that it was time for the IRS to finally fully disclose what happened internally at the agency, to “lay it on the line” and “put it out there.”

The Justice Department’s lawyer, Laura Conner, told Walton that the IRS should not be forced to “respond to far-reaching inquiries.” But Walton asked, “Why hide the ball? If there’s nothing there, there’s nothing there.”

On Aug. 17, Walton issued a written order telling the government to do an extensive search of IRS records relevant to the organizations that were targeted from May 2009, the earliest that any of the organizations had an application for tax-exempt status pending, to March 2015, the date of a subsequent Treasury Department inspector general report.

Most importantly, Walton ordered the IRS to answer a series of questions. These include the following:

  1. Why was tax-exempt status delayed for each of the nonprofits in this lawsuit?
  2. Who were the IRS employees involved in the decisions that resulted in the delays in granting tax-exempt status?
  3. What specific actions has the IRS taken to remedy the discrimination the organizations experienced?

All of this is well and good since it means that the IRS—after four years of delays—is going to finally have to tell us who (in addition to Lerner) planned, organized, and participated in the abuse of the government’s tax power to target Americans for their participation in the political process, their opposition to President Barack Obama and liberal policies, and their support for the Constitution and the rule of law.

Walton’s order is a significant victory for the plaintiffs in this lawsuit. But why were this hearing and this order even necessary in the first place?

As soon as President Donald Trump was inaugurated and the first members of the Trump transition team landed at the Justice Department, one of the first steps they should have taken was to order the Tax Division to stop its deliberate litigation strategy of fighting all attempts to ferret out what exactly happened at the IRS, and who was responsible for it.

Instead, the Justice Department has continued to obstruct discovery in this lawsuit that has been going on for four long years, resulting in Walton’s Aug. 17 order against the IRS and the Justice Department.

Even worse is the fact that during the Obama administration, the Justice Department filed a motion for summary judgment asking Walton to entirely dismiss this lawsuit.

This position should have been reversed the moment the Trump administration came into office. Instead, on Feb. 2, two weeks after the president was inaugurated, Hubbert filed another pleading in support of its motion for summary judgment, arguing once again that the IRS should not have to produce any information or documents and that the Tea Party groups’ lawsuit should be thrown out.

What are the political appointees at the Justice Department doing? Why are they continuing to protect the IRS? Why are they trying to stop the efforts to find out who at the IRS was responsible for this abusive behavior?

And while we are on the subject of the IRS scandal, why haven’t Trump’s political appointees at the Justice Department reversed the refusal of former U.S. attorney for the District of Columbia, Ronald Machen (who was an Obama appointee) to enforce the contempt citation issued by the House of Representatives against Lerner for her refusal to cooperate with the congressional committee investigating this abusive conduct?

As I have previously explained, Machen’s attempted justification of that refusal was legally wrong. His claim that Lerner had not waived her Fifth Amendment right was factually incorrect and contrary to the direct case law prevailing in the District of Columbia.

Lerner’s contempt citation can and should be presented to a federal grand jury as required under 2 U.S.C. §194, which states that it is the “duty” of the U.S. attorney “to bring the matter before the grand jury for its action.”

Machen refused to carry out that duty and so far, unfortunately, the new management at the Justice Department has also failed to carry out that duty, as well at its responsibility to hold the IRS responsible for its dangerous misbehavior.

This piece originally appeared in The Daily Signal