February 7, 2014
Targeting the IRS
By Jonathon Moseley
What should conservatives do next about the Orwellian intimidation of political opponents using the IRS? Here is a partial action plan.
Lawyers for targeted tea party groups are hurling marshmallows at one of the most shocking abuses of power in our nation's entire history. Conservative groups and their lawyers are only stating the obvious in bland, vanilla talking points.
What we are missing with many Obama scandals is a Larry Klayman, the former head of Judicial Watch. How is it that other lawyers have learned nothing from Klayman's example of prying stunning revelation after revelation out of the Clinton Administration? They only have to copy Klayman's game plan. Klayman was so powerful that "The West Wing" series created a character based on him. Whereas James O'Keefe has inspired an army of imitators in video exposés, there is still only one overworked Larry Klayman. A "lawsuit" is not a dress which a made-for-TV lawyer buys at Nordstrom's before going before the cameras.
The rampant corruption of the Obama Administration over the IRS scandal for targeting conservatives for their political beliefs is there to be exploited. Richard Nixon's use of the IRS to target political enemies was one of the Articles of Impeachment drawn up to prosecute Nixon before the U.S. Congress. Faced with those and other charges, Nixon resigned instead of trying to defend his actions. How could we possibly fail today?
Yet begging the IRS to investigate itself and groveling to get the IRS to reveal information is what we are currently reduced to. Begging is not the solution for getting serious action.
For the good of the entire country, Catherine Englebrecht, the National Organization for Marriage, or Christine O'Donnell need to file a "RICO" lawsuit (Racketeer Influenced and Corrupt Organization law). This would allow depositions, document requests, and subpoenas to get at the truth. RICO is very versatile and powerful. But only someone directly harmed would be eligible to bring such a lawsuit.
Catherine Englebrecht was suddenly targeted by multiple agencies after she filed an application for a tax exempt organization "True The Vote." Multiple agencies could only get involved if there were communications between the agencies. Therefore, there must be emails or correspondence back and forth among different agencies proving a conspiracy. There has to be a smoking gun or a bloody knife. A lawsuit is needed to pry it out.
Those three directly harmed also must file another Federal lawsuit. It could be 3 to 4 pages long. A lawyer who knows what the inside of a courtroom looks like could file it electronically by midnight tonight with an ECF password to the U.S. District Court for the District of Columbia website. Since it would be a pure interpretation of a law, there would be no trial needed, just a summary judgment motion.
The IRS is hiding behind a bizarre, twisted misinterpretation of privacy law. The law, 26 U.S.C. § 6103 of the U.S. Internal Revenue Code, states that "no officer or employee of the United States shall disclose any return or return information obtained by him in any manner." Section 6103 is designed to protect taxpayers with the privacy of their personal, financial, and tax information.
But the IRS says that the taxpayer cannot be told about abuses of the taxpayer's own tax information. The agency claims that the privacy law protects the IRS officials who broke the law against the taxpayer finding out what they did.
Someone with "standing" could file a 3-4 page Federal lawsuit to ask a Federal Court to interpret the law. The IRS interpretation is absurd. So a Federal court could easily render a binding, legal interpretation of Section 6103. But we have two Congressional committees begging the IRS to change its mind. Stop begging. If a Federal Court rejected the IRS interpretation, all of us could find out a lot more about what was done to all conservatives.
But "standing" would have to be carefully presented. No private citizen has standing to demand managerial supervision of IRS personnel. The only way we can force that door open is with someone who has been directly, personally harmed. The rest of us can only stand by helplessly watching and waiting.
Not everyone cares about Christine O'Donnell. But she is key because in her case many political forces got sloppy, and let us see their cards. Many forces scrambled at the last minute to destroy the upstart after the shock of her unexpected victory on September 14, 2010.
So forces that are normally slick, unseen, invisible, and careful let slip their tactics this time. Many Washington politicos left a smorgasbord of clues, evidence, smoking guns, and fingerprints all over. It doesn't matter what you think of her in politics. What matters is catching red-handed those who normally don't get caught and usually don't leave fingerprints.
The liberal Citizens for Responsibility and Ethics in Washington violated Federal election law and their IRS 501(c)(3) tax exempt status by running an independent expenditure political campaign against Christine O'Donnell. I personally conceived, designed, developed, and wrote a complaint in May 2011 on Christine's behalf asking the IRS to revoke the tax-exempt status of CREW. Cleta Mitchell filed a paraphrased version of my work in July 2011. But you can't just drop a complaint in the mail. You have to follow up by suing.
A lawsuit should now be filed to demand that the IRS comply with the Internal Revenue Code by revoking CREW's tax-exempt status, alleging that their failure to do so is arbitrary and capricious and involves an improper interpretation of the Code. A lawsuit would then allow depositions, document requests, and interrogatories to discover the truth.
And why were so many members of Christine's family suddenly audited, all at the same time, after she ran against Joe Biden in 2008 for U.S. Senate? If lightning strikes a house 5 times in a week, one has to conclude that something unusual is going on. Christine's family is unexceptional and middle class at most. What attracted IRS attention?
In late 2007, Christine O'Donnell was asked by many Delaware Republican leaders to run against Joe Biden for U.S. Senate in Delaware. There was a brief contest at the May 2008 convention by a businessman. But Christine was nominated by acclamation and no one ran against her for the nomination of the Republican Party in 2008.
In November 2008, Joe Biden ran both for vice president and re-election to the U.S. Senate on the same ballot. Then, many members of Christine O'Donnell's large family were all suddenly audited by the IRS, after Joe Biden was sworn in as vice president. Delaware politics is very intense, intertwined, and byzantine. Politics in Delaware is like three-dimensional chess. And in "The Delaware Way" things run on alliances behind the scenes outsiders would never grasp.
What would Judicial Watch have done about this? Larry Klayman's standard formula was to (1) file a FOIA request (here similar, better options would be available), (2) when the agency doesn't comply fully, file a lawsuit demanding full compliance with the Freedom of Information Act, (3) aggressively, skillfully, and doggedly pry the truth out of the administration brick by brick, in depositions, document requests, and interrogatories in discovery.
One of my favorite tactics (I think it is okay to reveal it) was to take the deposition of the lowest significant person in the office, not the highest. An official's assistant is usually unwilling to lie under oath and risk perjury for his or her political boss. Top officials are often skilled liars. Their assistants will usually sing like canaries.
Conservatives need to stop begging and start suing.