The IRS scandals: An evidentiary note

Yesterday on FOX News Sunday Chris Wallace invited Washington superlawyer Cleta Mitchell and reptilian Democratic hack Julian Epstein to discuss the IRS scandals in the context of the “lost” IRS emails. More than one scandal inheres in the events, including Obama’s declaration of innocence regarding those involved; I therefore refer to the IRS scandals. The video of the FOX News Sunday segment is below and is worth a look if you haven’t seen it.

At 2:30 in the segment Wallace displays a Missing Emails Timeline depicting a point made by Kim Strassel in her Wall Street Journal column of this past Friday. The segment is worth a look for the timeline all by itself. It shows that Lerner emails were “lost” a few days after House Ways and Means Committee Chairman Dave Camp asked sent a letter to the IRS inquiring about the targeting of conservative groups.

“The timing was coincidental,” Epstein asserts on the basis of no facts whatsoever.

Halfway through the ten-minute segment Wallace directs the discussion to the question whether “hard evidence” links the White House to the targeting of conservative groups by the IRS. Lois Lerner is the protagonist in this scandal. Lerner has taken the Fifth Amendment privilege against testifying to Congress on the ground that her testimony might incriminate her. Her emails with administration officials during the relevant period of time are among those that have been “lost.”

In response to Wallace’s question Cleta cites the report released by the House Oversight Committee on June 16. Wallace interrupts and asks for “hard evidence”; Cleta responds that Obama and Democratic Senators were “beating on the IRS” to “do something” (here Cleta puts up air quotes) about the conservative groups.

Epstein interrupts, asking “who inside the White House?”

“The president of the United States went around the country giving speeches…,” Cleta says.

“That is not hard evidence,” Epstein responds.

In the rest of the segment Epstein regurgitates long discredited Democratic talking points, as with his reference to a low-level IRS employee (“a Republican staffer”) in the IRS Cincinnati office at 8:35. The age of robots is indeed upon us.

As a general matter, evidence can be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is indirect evidence, that is, it is proof of one or more facts from which one can find another fact. Both direct and circumstantial evidence are entitled to consideration. Either can be used to prove any fact. The law makes no distinction between the weight to be given to either direct or circumstantial evidence.

The propositions above come straight out of federal jury instructions for use by federal judges in trials held before them. The jury instructions may even include an illustrative example: “[I]f you wake up in the morning and see that the sidewalk is wet, you may find from that fact that it rained during the night. However, other evidence, such as a turned-on garden hose, may provide an explanation for the water on the sidewalk. Therefore, before you decide that a fact has been proved by circumstantial evidence, you must consider all the evidence in the light of reason, experience, and common sense.”

Epstein implies that only direct evidence is “hard evidence.” This is simply not the case. Direct evidence can and frequently is far weaker than circumstantial evidence.

Both direct evidence and circumstantial evidence can be “hard evidence.” Obama’s declaration that there is “not even a smidgen” of corruption in the IRS is direct evidence (insofar as it absolves himself of wrongdoing), but by itself in the light of reason, experience, and common sense, it is worthless. Indeed, in the light of experience, it may be strong circumstantial evidence of a coverup.

Epstein is an attorney and he knows all this. His job is to blow smoke. He blew smoke in great quantities during the FOX News Sunday segment.

Here are the Findings in the June 16 House Oversight Committee report cited by Cleta in the interview:

• The President’s political rhetoric in opposition to the Supreme Court’s Citizens United decision and conservative nonprofits engaged in political speech led to the Internal Revenue Service’s targeting of tax-exempt applicants.

• Beginning in January 2010 and continuing through the November 2010 midterm election, President Obama orchestrated a sustained public campaign against Citizens United and nonprofit political speech critical of the President’s policies. This rhetorical campaign reached a crescendo in October 2010 as the President made almost daily public statements denouncing Citizens United and conservative groups with “benign-sounding” names “posing” as nonprofits. The President even singled out one so-called “shadowy” group, Americans for Prosperity, by name.

• The White House and congressional Democrats opposed Citizens United in part because it allowed nonprofits to engage directly in political speech critical of the Administration’s policies. The anonymity afforded to nonprofit contributors prevented the Administration and its allies from retaliating. As the President complained to a group of Democratic donors: “Nobody knows who they are. . . . [N]obody knows where the money is coming from.”

• Senior White House officials, Democratic Members of Congress, and other left-wing political figures and commentators echoed the President’s rhetoric. The Democrat-led Congress convened hearings to examine Citizens United and considered legislation to require disclosure of contributors to nonprofits engaged in political speech. The White House and left-leaning commentators supported these measures.

• Democratic Members of Congress, the Democratic Congressional Campaign Committee, and liberal advocacy organizations urged the IRS to investigate conservative nonprofits engaged in political speech.

• The IRS was acutely aware through articles in the national news media of the prevailing political rhetoric condemning Citizens United and the influence of nonprofits in the midterm election. One senior IRS official even cited the President’s “salvo” against Citizens United in telling her colleagues to expect continued media attention surrounding the issue of anonymous contributors to nonprofits engaged in political speech.

• The IRS internalized the political pressure urging the tax agency to take action on nonprofit political speech. In response to a news article about the Democratic Congressional Campaign Committee’s complaint against Americans for Prosperity, Lois Lerner wrote to her boss: “We won’t be able to stay out of this – we need a plan!” Lerner later initiated a project to examine 501(c)(4) political speech in response to an article in a tax-law journal.

• The IRS was attuned to political pressure exerted by congressional Democrats to address the shortcomings of Citizens United. Lerner expressed her support for the DISCLOSE Act’s donor disclosure requirements for nonprofits, writing: “Wouldn’t that be great?”

• As Democratic Members of Congress urged the IRS to investigate a conservative group, Crossroads GPS, Lerner asked a subordinate to look at the group. Echoing themes from the President’s rhetorical campaign and acknowledging the media attention on nonprofit political speech, Lerner wrote: “The organization at issue is Crossroads GPS, which is on the top of the list of c4 spenders in the last two elections. It is in the news regularly as an organization that is not really a c4, rather it is only doing political activity – taking in money from large contributors who wish to remain anonymous and funneling it into tight electoral races.”

• During a speech on October 19, 2010 – in the midst of the President’s rhetorical barrage – Lerner articulated the immense political pressure on the IRS to “fix the problem” posed by Citizens United. Echoing the President’s State of the Union Address, Lerner said that the Supreme Court overturned a hundred-year precedent and “everyone is up in arms because they don’t like it.” She continued: “So everybody is screaming at us right now: ‘Fix it now before the election. Can’t you see how much these people are spending?’”

• Lerner’s concern about the Citizens United decision caused her to order Tea Party applications to proceed through an unprecedented multi-tier review. As she wrote: “Tea Party Matter very dangerous. This could be the vehicle to go to court on the issue of whether Citizen’s [sic] United overturning ban on corporate spending applies to tax exempt rule.”

• The Justice Department arranged a meeting with Lerner on October 8, 2010, after Jack Smith, Chief of the Department’s Public Integrity Section, read an article in the New York Times about the influence of nonprofits in the midterm election. The IRS sent 21 disks containing 1.1 million pages of nonprofit tax-return information – including confidential taxpayer information – to the FBI in advance of this meeting. The Justice Department and the FBI have continued a “dialogue” about potential criminal investigations of nonprofits engaged in political speech.

• The IRS enjoyed a close and mutually beneficial relationship with congressional Democrats. The IRS received tips from Democratic sources about upcoming actions concerning nonprofit political speech, and the IRS even assisted Senator Carl Levin (D- MI) in preparing letters to the agency criticizing nonprofit political speech.

What we have here is a strong case of wrongdoing reaching the highest levels of the government. The investigation to date has been hampered by obstruction and delay including the destruction of evidence. The evidence of wrongdoing extending beyond Lois Lerner — both direct and circumstantial — is nevertheless strong.

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