| Obama's Double Asterisks on the IRS
By Glenn Reynolds
June 18, 2014
I guess it's time to award President Obama a second asterisk. When charges came out that the IRS targeted Tea Party groups for harassment, the Wall Street Journal's James Taranto started calling Obama "President Asterisk." His point was that this illicit assistance tainted the election, the way an athlete's use of illegal performance-enhancers results in an asterisk on any records he sets.
Now it may be time for another asterisk. As Congress investigates the IRS chicanery, the IRS has responded to a request for emails to and from Lois Lerner, who spearheaded the Tea Party harassment, by saying, basically, that the dog ate its homework. Or, rather, the IRS claims, somewhat dubiously, that "a hard drive crash" on Lerner's computer led to the loss of emails to outside entities "such as the White House, Treasury, Department of Justice, FEC, or Democrat offices." You know, the very people she's accused of coordinating her harassment with.
With those emails missing, it'll be harder to prove whether Lerner's Tea Party harassment might have been at the behest of other wrongdoers, perhaps going as high as the Oval Office itself. But since government agencies seldom "lose" evidence that makes them look good, reasonable people might suspect that there's a cover-up going on. After all, nobody thought that the famous "18½ minute gap" on Richard Nixon's White House tapes contained anything positive about White House involvement in Watergate.
National Journal's Ron Fournier thinks that "you couldn't blame a person for suspecting a cover-up." No, you couldn't. In fact, you'd have to be pretty gullible — or in-the-tank — not to suspect a cover-up.
So Fournier wants a special prosecutor to investigate the question, since in a matter of this magnitude — and one in which the Department of Justice might turn out to be complicit — the public trust wouldn't be satisfied by a routine investigation. Fournier writes: "The White House is stonewalling the IRS investigation. The most benign explanation is that Obama's team is politically expedient and arrogant, which makes them desperate to change the subject, and convinced of their institutional innocence. That's bad enough. But without a fiercely independent investigation, we shouldn't assume the explanation is benign."
He's correct, of course. But there's still a problem. Special prosecutors are lawyers who don't work for the Justice Department, appointed to investigate matters where the Justice Department itself cannot be relied upon to be entirely fair. But they are still appointed by the Justice Department's head, the attorney general. And I have absolutely no confidence that Attorney General Eric Holder will appoint a special prosecutor unless subjected to unimaginable political pressure — and, even then, he'd be likely to name a politically safe apparatchik who would simply run out the clock until Obama's term ends.
The emails' loss, of course, doesn't mean an end to the investigation. It's likely that copies exist on backup tapes and elsewhere, if people care to look for them. And if the pressure keeps up, it's entirely possible that whistle-blowers, in the IRS or elsewhere in the government, might come forward.
Meanwhile, the American people will probably revise their opinion of the IRS, and the federal government, further downward. The IRS used to be feared but respected. As it appears to be a political weapon aimed at Americans who hold the "wrong" views, it will now have to settle for being feared, which works fine for audits but less well at budget time. And IRS workers may find their neighbors and acquaintances eyeing them skeptically.
For now, if I were a member of Congress I'd zero out the IRS's travel and conference budget — the service spent tens of millions of dollars on videos spoofing Star Trek, Gilligan's Island, etc. in past years, for conferences held in cushy locations like Anaheim — and look at other ways to make the agency pay.
Targeting Americans is unforgivable; covering it up is worse, and if the IRS has made it impossible to target the individuals responsible, then the IRS as a whole should pay the price. That's not an ideal solution, but such misbehavior should not go unpunished.
Glenn Harlan Reynolds, a University of Tennessee law professor, is the author of The New School: How the Information Age Will Save American Education from Itself.
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