How Congress Botched the IRS Probe: Cleta Mitchell
http://www.wsj.com/articles/how-congress-botched-the-irs-probe-1431645154
Top officials repeatedly misled investigators without consequences. Congress needs to get tougher.
Two years ago this week, a report by the Treasury Inspector General for Tax Information confirmed what hundreds of tea party, conservative, pro-life and pro-Israel organizations had long known: The Internal Revenue Service had stopped processing their applications for exempt status and subjected them to onerous, intrusive and discriminatory practices because of their political views.
Since the report, additional congressional investigations have revealed a lot about IRS dysfunction—and worse. But they’ve also revealed Congress’s inability to exercise its constitutional oversight responsibilities of this and other executive agencies.
Consider the repeated testimony and other statements to Congress subsequently shown to be false. The report issued in December by Rep. Darrell Issa (R., Calif.)—then chairman of the House Committee on Oversight and Government Reform—details numerous instances in which senior IRS officials, including former Commissioner Doug Shulman, Acting Commissioner Steven Miller and Exempt Organizations Director Lois Lerner lied to Congress, denying and covering up the targeting of tea party and conservative groups before the inspector general’s May 2013 report.
Mr. Shulman told the Ways and Means Committee in March 2012 that there was no targeting of conservative groups. Congressional investigations, the Issa committee report notes, established that at the time of his denial Mr. Schulman knew there was “a backlog of applications, delays in processing, and the use of inappropriate development questions.”
In the early months of 2012, Ms. Lerner made multiple false statements to Congress. In personal meetings, telephone interviews and written communications with congressional investigators, Ms. Lerner denied there were any changes in the criteria for evaluating applications for exempt status. She stated, falsely, that the intrusive demands from her agency for proprietary information from grass-roots organizations were “ordinary”—a characterization the inspector general’s report specifically rebutted.
Ms. Lerner also told Congress that “nothing had changed” about the way her unit handled such applications. But at the very time she said that, the IRS, including Ms. Lerner, had already identified seven types of information that it had inappropriately demanded from conservative groups between 2010 and 2013. These included donor lists, transcripts of speeches by public officials to meetings, and lists of groups to whom leaders made presentations.
Between May 2012 and May 2013, Mr. Miller testified before Congress on at least six occasions, first as deputy IRS commissioner, then as acting commissioner. He withheld information from Congress each time about the targeting. In a November 2013 interview with congressional investigators—well after the targeting had been documented in the inspector general’s report—Mr. Miller admitted that he became aware of possible IRS misconduct in February 2012.
In the 15 months since he became the IRS commissioner, John Koskinen has testified repeatedly, sparring with members of Congress on a variety of subjects. In June 2014, after the IRS informed the Senate Finance Committee of the “missing Lois Lerner emails,” he told the Ways and Means Committee of the yeoman, but unsuccessful, efforts by various people within the agency to recover the Lerner emails. He claimed that it would cost “$10 million to upgrade the IRS’s technology infrastructure to begin saving and storing emails sent or received by” agency employees.
All the while the emails were sitting on an off-site server in West Virginia. And Timothy Camus, the deputy inspector general for tax information, testified to the House Oversight and Government Reform Committee earlier this year that the IRS does save and store all IRS employees’ emails.
Lying to Congress is a felony. But the Obama Justice Department has not lifted a finger to prosecute anyone responsible for the IRS scandal, including top brass who repeatedly gave false testimony to Congress.
Neither has Congress done much about being lied to by the IRS. Mr. Issa’s oversight committee first subpoenaed Lois Lerner’s emails in August 2013, then issued another subpoena in February 2014. The committee conducted a hearing on the subject in March 2014, during which Mr. Koskinen testified that, finally, the IRS would produce the Lerner emails. However, as he testified in June 2014, the agency didn’t even begin to look for her emails until February 2014. Why didn’t the House seek to enforce its first subpoena when the IRS failed to respond in the fall of 2013?
Congressional oversight has devolved into a series of show hearings after which nothing happens. No one gets fired for lying. No changes are made in the functioning of the agencies. No programs are defunded. Congress issues subpoenas that are ignored, contempt citations that aren’t enforced, criminal referrals that go into Justice Department wastebaskets.
If it is to function as a coequal branch of government, Congress should establish—either through the rules of each House, or by legislation, that it has standing to independently enforce a congressional subpoena through the federal courts. Congress also should use its purse strings to change specific behavior in federal agencies. Rather than across-the-board reductions, Congress should zero out specific departments and programs as agency misconduct is uncovered. It is the only way to stop the executive branch from running roughshod over the American people.
This will be a difficult challenge as long as partisans in both houses of Congress see their role as political gatekeepers who must protect executive agencies when a president of their own party is in the White House. Congressional Democrats have done all in their power to thwart the IRS investigation, arguing with Republicans at hearings and engaging behind-the-scenes with the IRS to undermine the inquiry.
Yet it is a challenge that cannot be shirked. Congress needs to relearn how to flex serious legislative muscle to guard against future executive abuses like those from the IRS.
Ms. Mitchell is a partner in the Washington office of Foley & Lardner. She represents many conservative and tea party organizations targeted by the IRS.
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