No Orange Jumpsuit For Lois Lerner

This post was originally published on Forbes Oct 23, 2015

The Department of Justice has informed Congress that there will be no prosecutions from its investigation into whether any IRS officials committed crimes in connection with the handling of tax-exemption applications filed by Tea Party and ideologically similar organizations. The decision was relayed in a letter signed by Peter J. Kadzik.  The letter outlines the exhaustive nature of the investigation.

We conducted more than 100 witness interviews, collected more than one million pages of IRS documents, analyzed almost 500 tax-exemption applications, examined the role and potential culpability of scores of IRS employees, and considered the applicability of civil rights, tax administration, and obstruction statutes.

The investigation found mismanagement, poor judgment, and institutional inertia, but  no crimes.

What Crimes Could There Have Been?

One question I have explored a bit is exactly what crime Lois Lerner or her minions could conceivably been charged with.  Here is what they considered.

The Department searched exhaustively for evidence that any IRS employee deliberately targeted an applicant or group of applicants for scrutiny, delay, denial, or other adverse treatment because of their viewpoint. Intentional viewpoint discrimination may violate civil rights statutes, which criminalize acting under color of law to willfully deprive a person of rights protected by the Constitution or federal law. See 18 U.S.C. §§ 241, 242. Intentional viewpoint discrimination may also violate criminal tax statutes that prohibit IRS employees from committing willful oppression under color of law, for example by deliberately failing to perform official duties with the intent of defeating the due administration of revenue laws, or by corruptly impeding or obstructing the administration of the Tax Code. See 26 U.S.C. §§ 7214(a)(l ), 7214(a)(3), 7212(a). These statutes require proof beyond a reasonable doubt that an IRS official specifically intended to violate the Constitution, Tax Code, or another federal law.

The problem that prosecutors would have had with bringing those charges was proving criminal intent.

Proof that an IRS employee acted in good faith would be a complete defense to a criminal charge; and proof that an IRS employee acted because of mistake, bad judgment, ignorance, inertia, or even negligence would be insufficient to support a criminal charge.

There was also the matter of the hard drive crashes and backup tape erasures.

We also carefully considered whether any IRS official attempted to obstruct justice with respect to their reporting function to Congress, the collection and production of documents demanded by the Department and Congress, the delayed disclosure of the consequences of Ms. Lerner's hard drive crash, or the March 2014 erasure of electronic backup tapes. See, e.g., 18
U.S.C. §§ 1503, 1512, 1515, 1519.

Where Is Deep Throat?

A portion of the letter that I found most intriguing is this:

Throughout the investigation, not a single IRS employee reported any allegation, concern, or suspicion that the handling of tax-exempt applications-or any other IRS function­ was motivated by political bias, discriminatory intent, or corruption. Among these witnesses were several IRS employees who were critical of Ms. Lerner's and other officials' leadership, as well as others who volunteered to us that they are politically conservative. Moreover, both TIGTA and the IRS's Whistleblower Office confirmed that neither has received internal complaints from IRS employees alleging that officials' handling of tax-exempt applications was motivated by political or other discriminatory bias.

An IRS employee who would step forward with a story that contradicts this statement would be an overnight sensation on Fox.  It will be interesting to see if that develops.

What About?

It is interesting to note that this particular investigation was about what I call the "core scandal" (i.e. the handling of exempt applications and related cover-up allegations). There is no discussion of matters such as disclosure of the National Organization for Marriage's donor list, the Z Street "special Israel policy" or the disclosure of documents to the FBI to promote criminal prosecutions of people who might have fibbed when they said that their 501(c)(4) was not going to be all that political.  That was the one thing that was suggested to me as a charge that might be brought against Lois Lerner - Lois The Discloser. The expert who mentioned it did not think it would stick very well.

Who Is This Good For?

I think that politically this decision might actually break in favor of conservatives who have adopted the scandal narrative as a matter of faith.  An actual prosecution of Lois Lerner would make for an epic trial in which her defense would put the whole question of "dark money" flooding into the political system on trial.  Right now, there does not seem to be anybody who likes her very much, but a trial could turn her into a martyr for the cause of transparency.  Instead this decision by DOJ will become one more strand in the scandal narrative.  Republican candidates can compete on how vigorous they will be in ordering DOJ to reopen its investigation.