by Andrew C. McCarthy
Through months of Obama administration stonewalling, the redoubtable Judicial Watch perseveres in a Freedom of Information Act lawsuit, finally uncovering bombshell documents that have eluded several congressional investigations. For the second time in a matter of days, we find that standing oversight committees with competing subject-matter jurisdictions and limited attention spans are incapable of the grand-jury-style probe needed to get to the bottom of administration lawlessness. For that, in the absence of a scrupulous special prosecutor reasonably independent from the Obama Justice Department (not gonna happen), it becomes clear that a select committee will be necessary.
Just two weeks ago, the scandal involved the cover-up of administration duplicity regarding the Benghazi massacre. (See my related article in the new edition ofNational Review.) Now, it is the targeting of conservative groups by the Internal Revenue Service.
For a year, the administration and IRS headquarters in Gomorrah by the Potomac have attempted to run an implausible con-job: The harassment of organizations opposed to Obama’s policies by an executive-branch agency had nothing to do with the Obama administration — it was just a rogue operation by an IRS office in Cincinnati which, though regrettably overzealous, was apolitical, non-ideological, and without “even a smidgen of corruption.”
The story had about as much credibility as the administration’s “blame the video” script that Susan Rice dutifully performed on the post-Benghazi Sunday shows, or the Justice Department’s 2011 assurance to Congress that its agents would never knowingly allow the transfer of a couple of thousand guns to criminal gangs in Mexico. The “Cincinnati did it” yarn has been unraveling since it was first spun by IRS honcho Lois Lerner and, soon afterwards, by President Obama himself. The lie has now been exploded by e-mails clawed from the IRS by Judicial Watch’sFreedom of Information Act suit.
These include one from a top IRS lawyer in Washington succinctly explaining in July 2010 that “EOT [i.e., the revenue agency’s “Exempt Organization Technical unit” in Washington] is working Tea party applications in coordination with Cincy.” “Tea party applications” were requests by conservative groups to be granted tax-exempt status under Section 501(c)(4) of the Internal Revenue Code. By selectively setting aside their applications, delaying the conferral of tax-exempt status to which the law entitled them, and putting them through inquisitions that violated their constitutional rights to political speech and association, IRS headquarters prevented them from raising funds and organizing as an effective opposition.
The e-mails elucidate that Cincinnati’s strings were being pulled in Washington: “We are developing a few applications here in DC and providing copies of our development letters with the agent [in Cincinnati] to use as examples in the development of their cases.” “Tea party applications,” IRS headquarters elaborates, have been isolated as “the subject of an SCR” — meaning “sensitive case report.” To “resolve” such cases would require “coordination with Rob” — a reference, Judicial Watch contends, to Rob Choi, who was then a high-ranking IRS official in Washington.
It is no more conceivable that IRS headquarters was off on its own anti–Tea Party witch-hunt than that the subordinate Cincinnati office was. The fuse, it must be recalled, was lit by the Supreme Court’s Citizens United decision in 2010, affirming the First Amendment’s prohibition against government restrictions of political speech by corporations. The ruling enraged the Left and prompted the president’stongue-lashing of the stunned justices during the 2010 State of the Union address.
At this point, it remains unclear which, if any, administration officials were — to borrow the delicate term — “coordinating” with the IRS. It is manifest, though, that in the atmosphere charged by Obama’s impertinence, congressional Democrats felt empowered to push the IRS to undermine free political speech through administrative intimidation. Judicial Watch’s FOIA suit reveals correspondence in which Senator Carl Levin, the powerful Michigan Democrat, agitates for IRS action against several conservative groups. In accommodating responses, then-IRS deputy commissioner Steven Miller takes pains to assure him that flexible regulations enable the revenue agency to design “individualized questions and requests” for targeted Section 501(c)(4) applicants.
After a damning Treasury inspector-general report last year, even the IRS concedes that its singling out of conservative groups and obnoxiously intrusive demands for information were “inappropriate.” In truth, they were blatantly unconstitutional. As is always the case in Washington scandals, the question of whether crimes were committed arises — and now, the companion question of whether lawmakers who encouraged executive lawlessness are guilty of crimes.
For the time being, the lawsuits brought by conservative organizations victimized by the IRS have alleged only civil wrongs: principally, the deprivation of their constitutional rights to free speech and association, and of their statutory right to tax-exempt status. Nevertheless, these claims could trigger criminal jeopardy. For example, federal law (specifically, Section 242 of the penal code) makes it a crime for a government official to “willfully subject any person . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.”
Without a competent, impartial investigation, it will be tough to amass sufficient evidence to prove a willful violation of law. The officials implicated would surely claim — however dubiously — that they were just trying to enforce ambiguous regulations. Moreover, even if executive-branch officials could be proved criminally culpable, any prosecution of members of Congress would face a severe roadblock: the broad constitutional immunity lawmakers enjoy whenever arguably engaged in “legislative acts.” Remember Representative William Jefferson, whose crass acceptance of bribes did not stop a federal appeals court from invalidating an FBI search of his Capitol Hill office.
In any event, as I argued here last weekend, to focus on criminal or civil liability is to miss the point. The importance of government officials lies in the public trust reposed in them and the awesome power it entails. When they demonstrate themselves to be unworthy of that trust, the imperative is to take the power away.
The IRS has become a vehicle of repression — one that Democrats have further empowered through Obamacare. Its budget should be slashed, and we should figure out better ways to raise revenue. In addition, government officials have engaged in conduct that, at a minimum, grossly disregarded the constitutional rights our government exists to safeguard. Whether such serious misbehavior is attributable to incompetence or corruption, the officials who engaged in it should be defrocked. Most of us couldn’t care less whether they are sent to jail or successfully sued, but we should all insist that they no longer wield power.
The most ominous development in the IRS scandal is the confederation of executive and congressional authority in opposition to our fundamental rights. The accumulation of all government powers in the same hands, Madison warned, “may justly be pronounced the very definition of tyranny.” In a free society, powers must be separated. The Framers thus gave us a Constitution that heeded the wisdom of Montesquieu:
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
The IRS scandal presents a textbook case of tyrannical execution. It is fraught with peril. We are dealing not merely with a single president, who presumes to rule by decree; nor just with his congressional partisans, who presume to pull the executive bureaucracy’s coercive levers. Enormous power is cumulating in an ideological movement that is hostile to free expression, one that views its political opposition not as fellow citizens with a different point of view but as enemies to be silenced and destroyed.
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Andrew C. McCarthy is a policy fellow at the National Review Institute.