Op-Ed: Congress Reaches New Low in Proposed Censure of IRS Commissioner

Look, I’m a law professor. I try to teach my students more than just an understanding of the rules relating to taxation. I want them to respect the law-giving authorities, both the Congress that writes the laws and the agency that must administer the laws as written, the IRS.

H. Res. 737 undermines my teachings. The resolution is permeated with pettiness, putrid with peevish odors. In case you think I just like alliteration, let’s take a look at some of the “charges” in the document and you will see what I mean.

The fourth and fifth “Whereas” clauses assert that Mr. Koskinen “failed to live up to the promise” he made at one hearing to “be transparent” because he did not inform the Senate Finance Committee about potentially missing Lerner emails until, at most, four months after he might have known about that particular problem.

In fact, the White Paper attached as Appendix 3 to Mr. Koskinen’s June13, 2014, letter to the Finance Committee spends 9 pages of text and 11 pages of attachments explaining the multiple problems the IRS encountered in recovering emails. To any reasonable person, that’s transparency. There is no accusation that the White Paper lied, or hid information about the problems. And no one contests the basic truths of the White Paper: responding to the Finance Committee’s myriad demands sucked up millions and millions of dollars and human work time that had to be diverted from the agency’s mission. So these particular accusations do not even attempt to accuse Mr. Koskinen of deliberately lying or covering up or hiding or destroying the relevant emails. They cannot. They just accuse him of not being “transparent.”

Not only are these accusations baseless, they’re trashy. The entire reason that Congress even knew about the potentially missing email was because Mr. Koskinen was, in fact, transparent about the email search process and dutifully reported to Congress about several problems in June 2013. He was able to do so, in part, because he consistently attempted to inculcate a sense of duty within the IRS. Rather than hiding problems as the resolution asserts, Mr. Koskinen went to extreme lengths to disclose and explain them.

What seems to affront the sensitive souls of those who voted H. Res. 737 out of committee is that Ms. Lerner’s hard drive crashed in June 2011. They have faith, sure and pure, certain and implacable, that this was no accident and that Lerner was hiding something. I say “faith” because they have no evidence. Even the faith part is shaky: the TIGTA report that started it all (May 14, 2013) shows Lerner had no reason to hide or cover up anything in June 2011. No one was watching or investigating her in June 2011. The entire matter of inappropriate scrutiny of 501(c)(4) applications was still an internal matter. It did not hit the Congressional radar screen (according to the first TIGTA report, on page 3), until the 2012 election cycle. TIGTA began its investigation in June 2012, about a year after Lerner’s hard drive crashed. It sure takes a lot of faith to believe that a hard drive crash in June 2011 was Lerner’s attempt to thwart an investigation that started in June 2012. Gosh, you’d THINK she’d would have at least waited until May 2012 so she could get rid of more stuff…

But those searching for conspiracy have faith. Their faith guides them even a step further into fantasy: since Lerner’s hard drive must have contained incriminating evidence (because it crashed), it follows that the White Paper and Mr. Koskinen’s letter were just covering up the cover-up. You see, a determined and faithful conspiracy theorist is not deterred by a lack of evidence. A lack of evidence just proves a successful cover-up.

So the Senate Finance Committee sent a letter to TIGTA on June 23, 2014, asking TIGTA to (1) try to recover what the IRS could not and (2) investigate whether anyone should be charged for the crime of obstruction of justice.

The result of all this tempest was not even a teaspoon of information.   After more than a year of work, TIGTA issued a report on June 30, 2015. It found no basis for obstruction of justice charges. True, TIGTA found sources overlooked by the IRS, such as loaner laptops, backup tapes stored in weird or forgotten places, and decommissioned email servers stored in closets. In other words, it found that the IRS—big shock here—was a pretty typical government bureaucracy filled with imperfect humans. All told, TIGTA reported that it found some 83 million unsearched emails on these new sources. That sounds like a lot…until you check your spam box. Of those 83 million, TIGTA found only 1,330 emails, linked to Lerner in some way, that were not among the 67,000 Lerner emails the IRS previously provided. Were any of these 1,330 emails from her busted hard drive, or were they emails that had been otherwise overlooked? The report does not specify.

And what did the Committee learn from these 1,330 additional emails? Squat. There was no evidence that any of these missing emails were in any way relevant to the original investigation. That is because the Senate Finance Committee had changed up its demands on the IRS. Up until early 2014, the IRS had worked hard to provide emails and other documents relative to the Committee’s original investigation of inappropriate scrutiny of 501(c)(4) applications from conservative groups. That is what Mr. Koskinen describes in his June 13, 2014, letter. But as the White Paper explains on pages 5-6, in early 2014 the Committee directed the IRS to re-do all the work it had already done and this time bring the committee any and all emails related to Ms. Lerner, regardless of their subject or content. Since what the IRS had produced had not given the Committee a basis for criminal charges, that just meant—to the faithful—that the IRS needed to be more forthcoming. The accusations in H. Res. 737 are all about Mr. Koskinen’s so-called failure to “obey” this expanded search command, issued in the form of a subpoena on February 14, 2014.

So, yea! here were a bunch of emails that IRS missed and TIGTA found. But none of them appear to have been relevant to the Committee’s original investigation; they simply were within the scope of its later demand for all of emails that were either to or from (or merely copied) Lois Lerner.

This does not deter the faithful who voted H. Res. 737 out of committee. Like my petulant son, they want to punish Mr. Koskinen for failing to give them what they were sure existed. He denied their faith. So they accuse him of failing to be “transparent.” It’s a silly, stupid, sad accusation that has no merit.

H. Res. 737 contains more accusations, all equally vapid. Later accusations claim Mr. Koskinen made a “series of false and misleading statements.” Why? Because certain statements he made turn out to be incorrect. The accusations really just accuse Mr. Koskinen of failing to be omniscient. All the statements that H. Res. 737 labels as “lies” and “false statements” are simply the result of normal information limitations in a bureaucracy.   If one put the phrase “to the best of by knowledge” or “to the best of my ability” before each of the alleged false statements, they would no longer be false. The “falsity” of the statements arises only from events beyond Mr. Koskinen’s control or knowledge.

For example, H. Res. 737 accuses Mr. Koskinen of lying when he testified that the IRS had ‘‘confirmed that backup tapes from 2011 no longer existed because they have been recycled, pursuant to the Internal Revenue Service normal policy’’ and that ‘‘confirmed means that somebody went back and looked and made sure that in fact any backup tapes that had existed had been recycled.” If one puts the phrase “to the best of my knowledge” in front of these statements, they are no longer false. TIGTA’s investigation showed the statements to be false only in the sense of being incorrect, not in the sense of Mr. Koskinen being aware at that time that they were incorrect. Yep, some back up tapes did still exist in some closet even as Mr. Koskinen was claiming they did not. So Koskinen was wrong about that, but he was correct in the destruction was, at that time, the IRS normal policy and he was correct in that “somebody” had looked and not found the tapes. That’s what he knew. That’s what he testified to: the best of his knowledge. This is all in the TIGTA report.

So, yeah, Mr. Koskinen was not omniscient. But his statement was to the best of his knowledge and it’s his knowledge that turns out to have been imperfect. In fact, when the Inspector General himself testified in 2015 about his agency’s findings, one Congressman urged him to describe how often IRS employees were not cooperating. The Inspector’s response was “Very rarely, especially, in all candor, under the current Commissioner. He’s been extraordinarily cooperative.”

The Inspector went on to point out that while IRS employees were cooperative in responding to authorized requests, they were not good at sharing information outside the specific boundaries of his investigation. In his words: “so they were not compelled to provide us that information, but they neglected to.” What the Inspector did not say, however, was that IRS employees can be criminally charged under IRC § 7213 if they disclose information outside of a lawful request. Conviction is a felony punishable by up to 5 years in the slammer. If you had THAT hanging over your head, you’d probably make the choice to stick to disclosing the information requested and not volunteer.

H. Res. 737 is a petty product of petulance. I’ve watched Mr. Koskinen testify at several hearings and what I have seen is grace under pressure. He came out of retirement at age 74 to volunteer for his country. I would like to see any one of the yahoos who voted H. Res. 737 out of committee step up and volunteer to manage the IRS when they turn 74. Wait…no…on second thought, given how they have mangled their oversight duties, that is not a sight I hope to see.

I sincerely hope that when Congress re-convenes in September, the House will treat H. Res. 737 like the garbage it is and throw it away.

Postscript: I very much appreciate the support I received from the following fellow tax profs who were kind enough to review an earlier draft: Richard Winchester (Thomas Jefferson School of Law); Roberta Mann (University of Oregon School of Law); Leandra Lederman (Indiana University Maurer School of Law); Lisa Milot (University of Georgia School of Law); Tracy Kaye (Seton Hall University School of Law). Readers, if you find errors, don’t blame these folks; it’s my fault and not theirs! Finally, please remember that I here express my personal views and am not writing on behalf of Texas Tech University School of Law. -BTC