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The IRS Scandal’s Smoking Gun

obama-lois-lerner-fifth-amendment-IRSA suspicious email could confirm Lois Lerner’s culpability in recent IRS abuses.

by Peter Roff

The so-called “smoking gun” proving the Internal Revenue Service played politics with conservative groups seeking official non-profit, social welfare status over the last several years may finally have been found.

In a rash of documents provided under the Freedom of Information Act to Judicial Watch, a non-partisan public interest law group, is an April 2013 email written by David Fish, acting manager of IRS Exempt Organizations Technical Guidance and Quality Assurance and sent to, among others, former IRS Director of Exempt Organizations Lois Lerner. It was part of a thread discussing a recent U.S. Senate hearing on the potential for the abuse of the 501(c)(4) tax status by organizations intervening inappropriately or improperly in candidate elections.

Responding to a message “What can I say?” from Lerner, Fish responds, “Tell Ruth she needs to get on the stick and that the next election cycle is around the corner. This is obviously a wonderful idea (that’s why we suggested it). I think you told Greg all you can tell him, unless you want to tell him that we’re taking guidance plan suggestions.”

The email is dated April 15, 2013 – well after initial allegations that the IRS had “slow-walked” the applications of conservative groups had been made and, by the agency, denied.

The “Ruth” mentioned in the message refers to Ruth Madrigal, an official at the U.S. Treasury Department. The “Greg” mentioned in Fish’s message is apparently a San Francisco-based attorney named Gregory Colvin, who started this chain with an e-mail to Lerner and Madrigal letting them know he has just testified before the Senate Judiciary Subcommittee on Crime and Terrorism on the issue of whether officers of (c)(4) organizations who made false statements under penalty of perjury on tax returns “could be criminally prosecuted.”

The Obama administration has insisted from the beginning that conservative groups were not singled out and that electoral considerations did not factor into what clearly went on. They prefer to adhere to the fiction that anything untoward that occurred generated spontaneously in branch offices among low level staff and not at the direction of anyone in Washington.

The particular mention by Fish of the idea that “the next election cycle is around the corner” seems to any reasonable person to confirm or at least suggest higher-ups at the IRS including Lerner knew exactly what they were doing, had used their positions for partisan political purposes, and were continuing to do so even though the word about what they were doing had leaked out.

“The David Fish email proves the IRS originated and fed to Senate Democrats the idea of threatening conservatives with criminal prosecution for engaging in political speech – specifically with an eye towards the 2014 cycle. It’s the strongest proof yet that there should indeed be criminal prosecutions, not of conservatives but of the IRS bureaucrats who conspired to suppress them,” said Phil Kerpen, the president of American Commitment and one who has followed this issue closely since it first become public knowledge.

Interestingly, sources close to the House Committee on Ways and Means, one of the congressional panels looking into the issue, is not at all certain the document containing the Fish email was given to the panel subsequent to a rather broad, comprehensive subpoena of the IRS.

There is also this message from Lerner, also made public as a result of the Judicial Watch FOIA. In it she writes, “As I mentioned yesterday – there are several groups of folks from the FEC world that are pushing tax fraud prosecution for c4s who report that are not conducting political activity when they are (or these folks think they are). One is my ex-boss Larry Noble (former General Counsel at the FEC), who is now president of Americans for Campaign Reform. This is their latest push to shut these down. One IRS prosecution would make an impact and they wouldn’t fell so comfortable doing the stuff. … So don’t be fooled about how this is being articulated – it is ALL about 501(c)(4) orgs and political activity.”

It seems the agency, which seemed to be moving past the scandal under its new leadership, is now right back in the thick of things as a result of these two emails. Lerner’s not talking – and faces a congressional contempt citation and possible prosecution for failing to do so. She should come clean immediately; the American people have the right to know what went on.

It also appears congressional investigators need to refocus, to cast a wider net and make sure all the documents they asked for were actually turned over. If they weren’t, then it would seem reasonable to conclude a cover-up had in fact occurred and may be a bigger thing than the underlying crime.

Rather than slow down its efforts and wind them up, congressional committees investigating what the IRS actually did and finding what other federal agencies – if any – it worked with to subvert the constitutionally protected rights to freedom of speech and association need to go into high gear. The upcoming summer recess would be the perfect time to focus on it since there will be nothing else going on in town.

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Peter Roff is a contributing editor at U.S. News & World Report.