Judge Walton to IRS: “Lay it on the line”

Among the imponderables staring us in the face in year 1 of the Trump administration is John Koskinen. Why does this man remain Commissioner of the IRS? Speaking of Obama holdovers, Koskinen is a beaut. I should have thought he was a prime candidate for sacking on day 1, though I don’t recall President Trump ever mentioning the scandals that have disgraced the IRS on the campaign trail.

Koskinen has capably served as a bureaucratic foot dragger, dissembler and apologist for the scandals involving the IRS targeting of Tea Party groups. The IRS has persistently downplayed and misrepresented the facts underlying the scandals since former IRS acting director of exempt organizations Lois Lerner mounted a carefully stage managed production to acknowledge them in May 2013.

Litigation ensued. Engaging in a war of attrition, the IRS has dragged out the litigation and withheld basic information. It has destroyed information responsive to congressional subpoenas. Forbes has helpful background here and a useful timeline here.

The litigation returned to the news this week when District of Columbia federal district judge Reggie Walton ordered the IRS to name the specific employees the agency blames for targeting tea party groups for intrusive scrutiny and said the government must prove it has ceased the targeting. Stephen Dinan reported on the particulars of Judge Walton’s order in his Washington Times article on the case.

Dinan quoted Judge Walton speaking at the hearing earlier this week. “Lay it on the line. Put it out there,” he told attorneys for the IRS, who are continuing to fight some Tea Party groups’ demands for full disclosure.

Dinan also briefly quotes American Center for Law & Justice senior litigation counsel Carly Gammill, who represents some of the Tea Party groups in the litigation. With a little help from Foley & Lardner’s Cleta Mitchell, I reached out to Gammill for a statement on Judge Walton’s order yesterday. Ms. Gammill graciously responded:

Despite confirmation from the D.C. Circuit last August that Plaintiffs’ constitutional claims against the IRS remain viable, resulting in a remand of the case to the district court for a decision on the substantive merits of Plaintiffs’ claims, the agency has persisted in its efforts to prevent disclosure of the details surrounding its targeting of these groups. Like the Plaintiffs, however, the district court was unpersuaded with the IRS’s latest arguments in support of its cover-up. At long last (four years into the litigation), the district court has finally ordered that the IRS produce information (including related documents not yet disclosed) addressing these crucial issues.

The court has instructed the IRS to explain, among other things, the reasons for the IRS’s delay of the Plaintiffs’ applications for tax-exempt status (to be addressed as to each separate Plaintiff), the identities of the individuals responsible for the delays, and any actions taken by the IRS since it granted them tax exemption that are outside the normal course of business.

The court also put to rest any notion that the IRS may limit the scope of its search for documents to only those dated between January 2009 and May 2013 (when former EO Director Lois Lerner publicly apologized for some of the IRS’s discriminatory conduct just ahead of the release of TIGTA’s [Treasury Inspector General for Tax Administration’s] first report on the subject), ordering instead that the relevant time period extends through the 2015 release of TIGTA’s follow-up report, and that all relevant sources of documents must be searched.

The impact of this ruling cannot be overstated, as it means that the IRS must finally acknowledge its wrongdoing (and the reasons for it) in the context of a judicial proceeding in which the agency may be held legally accountable for its misconduct.

Or so we hope.

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