Understanding the IRS Scandal (It’s not the cover-up — it’s the crime)

Cleta Mitchell, a DC lawyer who does a lot of work with non-profits, has performed a huge public service by preparing a public memorandum on IRS Targeting of Conservative Groups: A History, Overview and Status Report.

She provides a great primer on the law, and recounts her considerable experience in dealing with the IRS during this scandal, with back-up evidence.

She makes the important point that 501(c)(4) groups are permitted to engage in political activity — that is what most of them are created for. So the idea that the IRS was somehow policing rogue groups is absurd.

She then demolishes the protestations of innocence by the IRS. Prior to 2010, the process was (by government standards) reasonably fast, and any queries about applications concerned routine matters of structure and finance. Then:

It became apparent during the course of 2010 that the IRS had changed its system for reviewing and processing applications for 501(c)(3) and 501(c)(4) recognition. The timeline for some of the clients I currently represent demonstrates that the IRS is STILL holding up the applications for exempt status recognition of dozens — if not hundreds — of conservative organizations. [bf added]

Mitchell adds comments on statements made by Acting Commissioner Steven Miller, establishing that he and truth are not on speaking terms. Almost everything he said was designed to mislead — the problems have not been resolved; they were not caused by a few rogue agents; the program was run out of Washington, not Cincinnati; and the goal was most assuredly not to ensure a “fair and consistent” treatment of applications.

For example, in an attachment, she notes:

The fact that nearly 100 citizens groups received identical, burdensome questionnaires from IRS offices across the nation demonstrates that this was not a few `low level’ employees responsible for the effort. And, indeed, more than one agent in Cincinnati has advised me that his/her instructions regarding the processing of my `tea party’ related organization client(s) were coming from the Washington, DC office.

The attachment quoted above is an outraged letter that Ms Mitchell sent to Miller on May 10, 2013, before his congressional testimony. She also attached a letter dated May 21, 2013, signed by herself and 26 other lawyers, on “Unlawful Disclosure of Tax-Exempt Organizations Confidential Taxpayer Information.”

This letter is couched in the lawyers’ language of “surely, you want to correct your mistake”, but it makes the right point:

Moreover, organizations that espouse particular ideologies may be convinced — and may persuade others — that the IRS or its employees are biased against those ideologies and are engaged in a deliberate deliberate effort to undermine the organizations through deliberate improper disclosures. These results are all possible, whether improper disclosures by the IRS are malicious or merely the result of unintentional errors by agency staff. . . . Inaction or silence by the IRS fuels both fear of further disclosures and narratives alleging IRS ideological bias.

My overall view of the legal professions these days is pretty sour, but every once in a while a lawyer steps up with fire and courage and renews my faith. So thank you Ms Mitchell. And thanks to her letter-signing colleagues, who know that they are challenging an out-of-control and vindictive administration.

And keep a copy of her memo handy as a guide to the unfolding action.

(65 Posts)

Author: "Ending 'Big SIS' (The Special Interest State) and Renewing the American Republic" (2012) [www.SpecialInterestState.org] and "Property Matters--How Property Rights Are Under Assault and Why You Should Care" (1997). Some former jobs: Assistant Director of Consumer Protection in FTC; member of the Program Analysis Staff of the US Bureau of the Budget; Research Director of the Administrative Conference of the United States; Director of IPCentral at the Progress & Freedom Foundation; VP & GC of the National Legal Center for the Public Interest. Graduate of Harvard College and Harvard Law School, former Book Review Editor of the Harvard Law Review.

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