— by Polydamas
personally and through his subordinates and agents, endeavored to obtain from the Internal Revenue Service, in violation of the constitutional rights of citizens, confidential information contained in income tax returns for purposed not authorized by law, and to cause, in violation of the constitutional rights of citizens, income tax audits or other income tax investigations to be initiated or conducted in a discriminatory manner.
William of Ockham was a 13th century British philosopher who formulated an elegant scientific principle which has been called “Occam’s Razor”. His principle, known in Latin as lex parsimoniae, states “numquam ponenda est pluralitas sine necessitate” which is translated into “plurality must never be posited without necessity”. In other words, the scientific explanation that requires the fewest possible assumptions is most often the correct one. Conversely, the more complicated the explanation, the less likely it is to be correct.
In ancient times, without the benefit of precise instruments and observations, scientists and philosophers opted for complicated theories. For example, British philosopher John Locke noted in his 1690 “An Essay Concerning Human Understanding”, that Hindu mythology believed that our world sat atop an “elephant which was on a tortoise”. The Greek philosopher Plato also proposed a complicated theory in his “Republic” that the Earth was at the center of a spindle whose orbits contained the sun, moon, and planets, which were propelled by the sirens and by the three Fates Clotho, Lachesis, and Atropos. However, the simplest theory that required the fewest possible assumptions, namely, the absence of elephants, tortoises, sirens, and Fates, was advanced by Nicolaus Copernicus that the Earth revolved around the sun. (Aristarchus of Samos first proposed the idea in the third century B.C.). The theory that the Earth revolved around the sun was confirmed observationally by Galileo Galilei using a telescope. Then, Sir Isaac Newton’s three laws of motion explained celestial mechanics via mathematical equations.
The same principle of parsimony that applies to science often applies to people. Liars most often embellish their false stories with intricate and complicated details. To their own ears, their stories are not believable so they feel compelled to elaborate their stories in order to give their audience a verisimilitude of truth. It is a near certainty that any explanation that depends upon a series of improbable coincidences is false. In other words, it is far more likely that a man named William Shakespeare deliberately wrote Hamlet than an infinite number of monkeys typing keys at random into an infinite number of typewriters for infinite length of time.
Let us first consider the facts related to the scandal in which the Internal Revenue Service (IRS) targeted conservative organizations which applied for tax-exempt treatment. In its 54-page May 14, 2013 report (reference No. 2013-10-053), the Treasury Inspector General for Tax Administration concluded that, early in the calendar year 2010, inappropriate criteria were used to screen tax-exempt applications for review. The Inspector General made three findings. First, ineffective IRS management used inappropriate selection criteria to target conservative organizations that had names such as “Tea Party”, “Patriots”, “9/12 Project”, described their leading issues as “government spending”, “government debt or taxes”, advocated how “to make America a better place to live”, or criticized “how the country was being run”.
Second, the Inspector General found that inappropriate selection criteria were kept in place for more than 18 months and resulted in substantial delays in processing the tax-exempt applications of these conservative organizations. In 2012, the average processing time of the IRS for tax-exempt applications was 238 calendar days. However, 81 percent of the applicants which were singled out for special attention by the IRS for potential political advocacy were held up for more than one year. As of December of 2012, the average processing time for such organizations was 574 calendar days.
Third, the Inspector General determined that the IRS improperly demanded private and overly-invasive information from the conservative organizations. For example, the IRS demanded: 1) the names of the organizations’ donors, 2) a list of all issues that are important to the organization and its position regarding such issues, 3) the roles and activities of the audience and participants, 4) the type of conversations and discussions members and participants had during the activity, 5) whether any of the officers or directors of the organization has run or will run for public office, 6) the political affiliation of the officer, director, speakers, candidates supported, etc., 7) employment information of the members including hours worked, and 8) activities with other organizations. The Inspector General concluded that such scrutiny “could result in potential donors and grantors being reluctant to provide donations or grants to organizations applying for I.R.C. § 501(c)(3) tax-exempt status.”
One might ask oneself whether the IRS’ singling out of conservative organizations could have been just an unfortunate coincidence, an example of inadvertent bureaucratic mistakes and organizational inefficiency with which everyone is familiar? The short answer is “no”. Let us add a few more facts.
In 2010, the United States Supreme Court decided the case of Citizens United v. Federal Election Commission. In that case, the Supreme Court determined that corporations had a First Amendment right to spend money and to express their political views in close proximity to elections. The decision essentially eviscerated the McCain-Feingold Act.
The McCain-Feingold Act was a boon to political incumbents because anything they did was newsworthy and they received free news coverage by the mainstream media. In contrast, political challengers must purchase expensive commercials on television and advertisements in newspapers in order to get their political messages to the voting public. Any law that limits the amount of money that a candidate can legally spend on an election enormously benefits incumbents and handicaps the political speech of challengers. This is precisely the reason that incumbent Senators and House Representatives voted for it.
Also, one of the consequences of the McCain-Feingold Act was that it allowed the mainstream media to criticize one political candidate and laud another close to election time. However, a private organization was prohibited from doing the same. This gave enormous power to the mainstream media. Since the mainstream media has a well-documented bias in favor of liberal politicians and causes, the McCain-Feingold Act redounded to the benefit of liberals.
In 2010, President Barack Obama expressed publicly and privately his extreme displeasure with the Supreme Court’s decision in the Citizens United case. In his State of the Union address, he railed against the decision and asked Congress to pass a law that would effectively nullify the decision or threatened to resort to executive order. There can be no doubt that the IRS’ singling out of conservative organizations for intense scrutiny prevented them from participating politically in the 2010 congressional elections and in the 2012 presidential elections, both of which conferred an enormous benefit upon President Obama’s re-election and the many congressional Democrats who were swept into office in 2008.
The most salient question in this scandal is whether Lois Lerner, the IRS Director of Tax-Exempt Organizations, was a loose, partisan cannon who was acting on her own to suppress conservative-leaning organizations during the 2010 and 2012 elections or whether she was acting at the behest of higher elements in the executive office.
Now, let us examine here the sequence of what would appear to be improbable events which ensued after the IRS scandal broke, with the capable help of the Daily Caller’s Patrick Howley’s June 22, 2014 post (http://bit.ly/UvZ484). When Mrs. Lerner’s involvement came to light in 2011, in June of 2011, Republican House Ways and Means Chairman Dave Camp requested Mrs. Lerner’s e-mail records from IRS. Then in June of 2011, only ten days after Congressman Dave Camp’s request, Mrs. Lerner’s hard drive supposedly crashed and wiped out her e-mails. “Coincidentally”, the hard drive and e-mails belonging to another IRS official Nikole Flax who was a frequent visitor to the White House, also suffered the same crash as Mrs. Lerner. On August 31, 2011, the IRS terminated its six-year business relationship with Sonasoft, the e-mail archiving company that archived the IRS’ e-mails, including Mrs. Lerner’s.
Despite assurances by high IRS officials over the past two years that Mrs. Lerner’s e-mails would be forthcoming, the IRS waited until late June of 2014 to inform the congressional committee that is investigating the scandal about Mrs. Lerner’s hard drive crash. According to Rachel Bade’s June 19, 2014 article in Politico, titled “Sources: Lois Lerner’s emails Likely Gone Forever”, (http://politi.co/UOaVPi), Mrs. Lerner’s hard drive that contained her e-mails from 2009 to 2011 was recycled and is unavailable for forensic examination. Not only was there a hard drive crash within 10 days of Chairman Camp’s request, the hard drive happened to destroy e-mail communications exchanged with individuals outside the IRS. Naturally, the White House claimed that it had no e-mail communications with Mrs. Lerner, which cannot be corroborated without an exhaustive and probably futile request for the White House’s hard drives which the President could deny Congress under executive privilege. Adding to this series of highly improbable and suspicious events is that the tape backups of Mrs. Lerner’s hard drive were only kept for six months and were then written over.
What we have here is a supposedly apolitical executive agency that blithely refused to turn over e-mails to Congress in a timely fashion, did not report back to Congress that Mrs. Lerner’s hard drive crashed, did not preserve the hard drive in response to congressional request, recycled the hard drive and the tape backup, and did not inform Congress of the above until two years later in and then buried the admission in the middle of an unrelated report to Congress. This led Rep. Dave Camp, chairman of the House Ways and Means Committee, to complain: “The fact that I am just learning about this, over a year into the investigation, is completely unacceptable and now calls into question the credibility of the IRS’s response to congressional inquiries. There needs to be an immediate investigation and forensic audit by Department of Justice as well as the inspector general.”
In yet another article dated June 25, 2014 and titled “IRS E-mail Jeopardy”, (http://on.wsj.com/1j7k0xD), The Wall Street Journal reports that, not only was the IRS obligated to preserve evidence for Congress, but also because there is a federal lawsuit currently pending in the Washington, D.C. Federal District Court. The lawsuit, brought by an organization which the IRS singled out for discriminatory treatment, created a legal obligation upon the IRS not to destroy evidence.
Lois Lerner is an attorney by education and experience, who graduated from the Western New England College School of Law. She worked as a Special Assistant in the U.S. Attorney’s Office and, later on, was the Assistant General Counsel for Enforcement with the Federal Election Commission. She knew or should have known about the IRS’ legal obligation to preserve evidence during a lawsuit. Perhaps this is the reason that she refused to testify before Congress, invoking her Fifth Amendment right against self-incrimination, and was held in contempt of Congress. Similar to Mrs. Lerner, the current Commissioner of the Internal Revenue Service, John Koskinen, is also an attorney who graduated from Yale School of Law and practiced law with the prominent law firm of Gibson, Dunn and Crutcher. He knew or should have known about the IRS’ legal obligation to preserve evidence in the midst of a federal lawsuit and in response to congressional demand.
The above-described events cannot be attributed to a series of innocent coincidences at an understaffed and overburdened bureaucratic agency any more than a billion monkeys can randomly reproduce William Shakespeare’s Hamlet in the span of one month. Positing the theory that the buck stopped with Lois Lerner and that she was the mastermind of a sophisticated scheme to circumvent the Citizens United case, to suppress political advocacy by conservative organizations during the 2010 and 2012 elections, and to dispose of the evidence makes as much empirical sense as our world being balanced atop elephants, a tortoise, and a snake. Occam’s Razor mandates a contrary explanation that ends at 1600 Pennsylvania Avenue, which had the most to gain.
We here at The Cassandra Times predict that Lois Lerner will figuratively fall on her sword in the service of President Barack Obama. She will be hounded by a independent prosecutor who will be compared to Whitewater prosecutor Kenneth Starr. She will claim victimhood by a vast right-wing conspiracy just like former First Lady Hillary Clinton and will sing “We Shall Overcome” in court. In the unlikely event that she is convicted, she will be spared the spectacle of being led in handcuffs to a federal prison because she will be pardoned by President Obama in return for her doing her part to deliver his re-election in 2012. She will continue to receive her government pension and retirement benefits and will also be rewarded handsomely by being hired as the next president of a prestigious liberal arts university in Massachusetts. There will also be a lecture circuit and lucrative book deals in her future. Unlike Republicans, Democratic presidents know how to protect and reward their loyal soldiers who take bullets for their superiors.
In a parallel and possibly more just universe, Congress would dust off and recycle Article 2 of the House Judiciary Committee’s Articles of Impeachment that was drafted against President Richard Nixon on July 27, 1974 and use the same language against President Barack Obama that he acted:
personally and through his subordinates and agents, endeavored to obtain from the Internal Revenue Service, in violation of the constitutional rights of citizens, confidential information contained in income tax returns for purposed not authorized by law, and to cause, in violation of the constitutional rights of citizens, income tax audits or other income tax investigations to be initiated or conducted in a discriminatory manner.
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Wall Street Journal
IRS Email Jeopardy
The agency had a legal obligation to retain the records it lost.
Updated June 25, 2014 5:49 p.m. ET
In private white-collar cases, companies facing a lawsuit routinely operate under what is known as a “litigation hold,” instructing employees to affirmatively retain all documents related to the potential litigation. A failure to do that and any resulting document loss amounts to what is called “willful spoliation,” or deliberate destruction of evidence if any of the destroyed documents were potentially relevant to the litigation.
At the IRS, that requirement applied to all correspondence regarding Z Street, as well as to information related to the vetting of conservative groups whose applications for tax-exempt status were delayed during an election season. Instead, and incredibly, the IRS cancelled its contract with email-archiving firm Sonasoft shortly after Ms. Lerner’s computer “crash” in June 2011.
In the federal District of Columbia circuit where Z Street’s case is now pending, the operating legal obligation is that “negligent or reckless spoliation of evidence is an independent and actionable tort.” In a 2011 case a D.C. district court also noted that “Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.”
The government’s duty is equally pressing. “When the United States comes into court as a party in a civil suit, it is subject to the Federal Rules of Civil Procedure as any other litigant,” the Court of Federal Claims ruled in 2007. The responsibility to preserve evidence should have been a topic of conversation between the IRS chief counsel’s office and the Justice Department lawyers assigned to handle the Z Street case.
As it happens, the IRS also had a duty to notify Congress if it learned that discoverable evidence had been lost or destroyed. We now know that the IRS has been aware of Lois Lerner’s lost emails since at least February, but IRS Commissioner John Koskinen failed to mention this in his congressional testimony on March 26, saying instead that the IRS was fully cooperating with congressional requests.
Since the email destruction story broke, the IRS has pushed the narrative that losing or recycling emails was no big deal for the agency that wields the government’s fearsome taxing power. The agency isn’t nearly as cavalier about the responsibilities of groups whose tax status it handles.
One tax-exempt group represented by Washington lawyer Cleta Mitchell had a policy of retaining documents for one year. But under a deal insisted upon by the IRS, the group had to retain correspondence such as email for three years and permanently for “legal or important matters,” or it risked losing its tax-exempt status.
So much for the IRS living by its own rules, and on Tuesday at a House Oversight and Government Reform hearing we learned of another IRS legal failure. Archivist of the United States David Ferriero said the IRS “did not follow the law” when it failed to report the loss of Lois Lerner’s emails. All federal agencies are “required to notify us when they realize they have a problem that could be destruction or disposal, unauthorized disposal” of federal records, he said.
Attorney General Eric Holder won’t name a special prosecutor, but there’s still plenty of room for the judge in the Z Street case to force the IRS to explain and answer for its “willful spoliation” of email evidence.
