The Lois Lerner Affair and Beyond

We have finally seen reveled what many of us knew all along; that Lois Lerner, the head of the IRS exempt organizations unit, was up to her eyeballs in the mishandling of the applications by Tea Party and similar groups that occurred during the run-up to the 2012 election.   Lerner’s job was to oversee the process of examining applications for tax exempt status by anyone who happens to be interested in obtaining such status.   It could be a local arts organization, a sports for youth club, or a church.  In this case, it happened, primarily, to be groups who filed under the Internal Revenue Code Section 501(c)(4) which permits groups such as local Tea Party organizations to file as social welfare organizations.  Applications under Section 501(c) generally take about 6 weeks to process and if the applications are filled out properly, are a virtual rubber stamp proceeding.  I can make this statement as someone who has successfully filed numerous such applications for past clients.  The Tea Party groups and particularly the Houston based True the Vote organization should have been processed without comment, unless there was something missing from their paperwork.

Instead of doing their jobs,  Lerner and her staff used a variety of delaying and harassing tactics to prevent the applications from going through and as a result, prevented the applicant organizations from having the legal standing to raise fund needed for their legitimate activities.  This was, in and of itself, illegal.  It was the use of an official government position and department for political purposes, which is prohibited by the Hatch Act.  Lerner almost certainly knew this, as someone in her position is generally advised that they cannot actively be involved in political activity while on the job, and should avoid the appearance of impropriety while away from their offices.

But the problem goes further.  Lerner was, according to emails obtained by Congress, feeding information contained in the tax exemption applications to Congressman Elijah Cummings, and either directly, or indirectly, to political organizations with ties to the  Democrat Party and the Obama campaign.  This is a violation of another federal law, which appears in the Internal Revenue Code.  A summary is provided to IRS employees in the Internal Revenue Manual.  IRS employees are expected to be aware of these provisions and that violation of them is a criminal felony.  And while apologists may protest that the applications did not contain “return information” other information regarding the taxpayer’s identity, sources and amounts of income and so on, is protected in the sub-parts of the applicable section.

Lerner has appeared in front of Congress, and on the first occasion made a self-defensive statement followed by asserting her Fifth Amendment rights against self-incrimination.  Congressman Trey Gowdy correctly asserted that this was incorrect procedure and that by making her 17 (according to Gowdy’s count) exculpatory assertions Lerner had waived her rights.  Gowdy’s position is in line with a long series of court decisions.  So much so, in fact, that some attorneys have advised their clients not even the simplest of questions such as their names, in order to be certain that the rights were preserved.  Lerner should be, and apparently will be found in contempt of Congress, which is where the process may end.  The problem is with prosecution of the crimes.

Consider that all of the crimes committed by Lerner and her colleagues as well as Contempt of Congress fall under federal jurisdiction.  This means that the ultimate responsibility for prosecution rest with Eric Holder.  Holder was placed into the office of Attorney General for one simple reason; he could be counted on to cover, fail to investigate, or neglect to prosecute crimes committed by members of the Obama administration.  Holder has done that job.  And on top of that, it has now been revealed that at least one member of his staff was discussing the possibility of prosecuting the applicants for tax exemptions.  Thus, Holder and his assistants are also up to their eyeballs in what has become a criminal conspiracy.  But as long as publicity remains muted and public outrage is likewise less than overwhelming, Lerner will not be prosecuted and the matter will likely die there.  This will be  an unfortunate conclusion.

In the past there have been allegations of the IRS being used as a political tool.  Richard Nixon was supposed to have threatened to use it against his opposition.   It is generally believed that he never actually did so.  Franklin Roosevelt is widely believed to have used the IRS to prosecute cases to further his political and economic aims which accounts for the plethora of cases which occurred during the 1930’s bearing the name of IRS Commissioner Helvering.   More recently there have been few, if any cases that fit this model.   But the mistreatment of the Section 501(c) applications is not a court proceeding, except in rare cases such as when the Service attempted to deny tax exempt status to the Church of Scientology.   That was an apolitical act, unlike the more recent events.

The actions of Lerner and her staff point out two specific things.  Firstly, that the Internal Revenue Service can and will be illegally used for political purposes by unscrupulous administrations.  Second, that both the IRS and the Department of Justice hold too much power with too little oversight.  Both must be reined in for the good of the nation.

There has been discussion of a conference of states to add protections for citizen’s and state’s rights to the Constitution.  This, if achieved should included a right for the legislative branch to prosecute and punish employees of the executive branch if the Attorney General’s office refuses to do so.  The checks and balances have become way out of balance, and the scales must be righted.  The sort of corruption which we seen in the nation’s capital today must be eliminated and prevented from recurring.   Otherwise, despotism lies just around the corner.





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