In what amounts to another act of inexcusable negligence by the Department of Justice, former IRS bureaucrat Lois Lerner – the woman who President Barack Obama put in charge of weaponizing the agency as a tool to suppress Tea Party groups – has escaped being charged for her role in the wide-ranging conspiracy, which involved at least five other employees.
The decision is the culmination of five years of lawsuits brought by conservative groups against Lerner and the IRS, which successfully forced the agency to release the names of 426 nonprofit groups that were systematically targeted for additional scrutiny. The scandal was first disclosed to the public in 2012, but evidence obtained by conservative groups revealed that Lerner and another high-ranking IRS official knew about it years before.
Predictably, conservatives are outraged by the decision – a rage that’s compounded by the DOJ’s reluctance to investigate former FBI Director James Comey and former Attorney General Loretta Lynch for possibly colluding to quash the investigation into Hillary Clinton’s mishandling of classified information, though Congress has nominally launched an investigation into the latter.
In the following statement, Judicial Watch President Tom Fitton asked that Trump intervene and order a complete review of the scandal:
“I have zero confidence that the Justice Department did an adequate review of the IRS scandal. In fact, we’re still fighting the Justice Department and the IRS for records about this very scandal. Today’s decision comes as no surprise considering that the FBI collaborated with the IRS and is unlikely to investigate or prosecute itself.
President Trump should order a complete review of the whole issue. Meanwhile, we await accountability for IRS Commissioner Koskinen, who still serves and should be drummed out of office.”
In a news release about the decision, Judicial Watch recounted how litigation forced the IRS first to say that emails belonging to Lerner were supposedly missing and later declare to the court that the emails were on IRS back-up systems, exposing a proliferation of “record-keeping problems” at the agency.
Here’s a timeline of civil actions and disclosures related to the scandal:
“In June 2014, the IRS claimed to have “lost” responsive emails belonging to Lerner and other IRS officials.
In July 2014 Judge Emmett Sullivan ordered the IRS to submit to the court a written declaration under oath about what happened to Lerner’s “lost” emails. The sworn declarations proved to be less than forthcoming.
In August 2014, Department of Justice attorneys for the IRS finally admitted Judicial Watch that Lerner’s emails, indeed all government computer records, are backed up by the federal government in case of a government-wide catastrophe. The IRS’ attorneys also disclosed that Treasury Inspector General for Tax Administration (TIGTA) was looking at several of these backup tapes.
In November 2014, the IRS told the court it had failed to search any of the IRS standard computer systems for the “missing” emails of Lerner and other IRS officials.
On February 26, 2015, TIGTA officials testified to the House Oversight and Government Reform Committee that it had received 744 backup tapes containing emails sent and received by Lerner. This testimony showed that the IRS had falsely represented to both Congress, Judge Sullivan, and Judicial Watch that Lerner’s emails were irretrievably lost. The testimony also revealed that IRS officials responsible for responding to the document requests never asked for the backup tapes and that 424 backup tapes containing Lerner’s emails had been destroyed during the pendency of Judicial Watch’s lawsuit and Congressional investigations.
In June 2015, Judicial Watch forced the IRS to admit in a court filing that it was in possession of 6,400 “newly discovered” Lerner emails. Judge Emmet Sullivan ordered the IRS to provide answers on the status of the Lerner emails the IRS had previously declared lost. Judicial Watch raised questions about the IRS’ handling of the missing emails issue in a court filing, demanding answers about Lerner’s emails that had been recovered from the backup tapes.
In July 2015, U.S District Court Judge Emmet Sullivan threatened to hold John Koskinen, the commissioner of the Internal Revenue Service, and Justice Department attorneys in contempt of court after the IRS failed to produce status reports and recovered Lerner emails, as he had ordered on July 1, 2015.”
According to the Washington Examiner, after being asked by Republicans in April to take a "fresh look" at the case against Lerner, the Trump administration responded Friday that it had reviewed the case and decided against it.
Some Republicans in Congress openly questioned Attorney General Jeff Sessions’s judgment:
"[T]he Department determined that reopening the criminal investigation would not be appropriate based on the available evidence," Assistant Attorney General Stephen Boyd wrote in a letter to Kevin Brady, the chairman of the House Ways and Means Committee.
Boyd added that the department had "carefully reviewed" its original 2015 decision not to prosecute, and had new attorneys independently review the investigation. He said that to convict Lerner, it would be necessary to prove that she intentionally discriminated against the groups based on their political views.
"I assure you that the Department has carefully studied the law, given the evidence the utmost consideration, and thoroughly reviewed the prior investigation from an objective perspective," he wrote.
In his response, Ways and Means Chairman Brady called it a "terrible decision" that suggested political appointees were not being held accountable under the law.
"I have the utmost respect for Attorney General [Jeff] Sessions, but I'm troubled by his Department's lack of action to fully respond to our request and deliver accountability," the Texas lawmaker said in a statement.
Peter Roskam, chairman of the House’s tax subcommittee, also criticized the decision, calling it "a miscarriage of justice."
Lawmakers had previously suggested that the Obama Department of Justice had declined to prosecute Lerner in 2015 because it was taking political cues from Obama. In 2014, their committee had voted to refer Lerner to the Justice
Department for prosecution for her role in the targeting scandal. Now Obama is gone, but the DOJ continues to protect his henchmen. The DOJ’s excuse – used many times recently - that proving intent would be too difficult, seems flimsy.
Not to mention being a political black eye for an administration already struggling to appease Republicans in Congress.