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Justice Is Blind At The IRS

If they gave an award for Least Surprising Bureaucratic Decision of the Year, the Justice Department’s conclusion that there is no basis for prosecuting Lois Lerner would be an automatic contender.

The department announced last week that no criminal charges would be filed against Lerner, or any other Internal Revenue Service officials, in connection with the long-running investigation into the handling of conservative groups’ applications for tax exemption. Peter J. Kadzik, the assistant attorney general for legislative affairs, said in a letter that the investigation uncovered substantial evidence of mismanagement and poor judgment. “But poor management is not a crime,” Kadzik wrote.

With this conclusion, the Justice Department closed its investigation, more than two years after the story of the IRS’ inappropriately political scrutiny first broke. Congressional Republicans are not willing to abandon the affair just yet, however. The House Ways and Means Committee will continue to look into the IRS’ actions, according to committee Chairman Rep. Paul Ryan. Democrats, predictably, have treated the Justice Department’s conclusions as the last word on the matter.

Protecting citizens’ civil rights is an avowed objective of this administration’s law enforcers, but like everything else at Justice these days, “civil rights” is defined through a political lens. When viewed through that lens, putting bankers in jail and getting drug pushers out of jail both seem like rational objectives. So does aggressive prosecution for alleged insider trading based on criteria that prosecutors made up as they went along, until the Second Circuit recently put the kibosh on that gambit. (Showing that it knows how to pursue a matter when it is so inclined, Justice then sought Supreme Court review of that ruling, which was denied.)

Politics likewise permeates the department’s decision not to prosecute an IRS official who instructed subordinates to be on the lookout for nonprofit applicants displaying partisan leanings contrary to those of the administration.

That instruction was part of an initiative tacitly encouraged by the president himself, when he expressed his contempt for the Citizens United ruling and the justices who decided it. Emails that were released after the IRS scandal broke indicated that Citizens United would open the door to overt political stands from tax-exempt organizations. The IRS was deployed in the administration’s effort to combat the ruling in multiple ways, including an attempt to apply gift taxes to donations to
501(c)(4) organizations, which was so patently unsupportable that the strategy was dropped soon after it saw the light of day.

And then along came Lerner, her BOLO memo and the administrative quicksand that soon bogged down conservative 501(c)(4) applicants.

There is ample evidence on the record of Lerner’s contrary political leanings and her interest in coordinating the IRS’ efforts with those of others who wanted to impede political activity by conservatives. For instance, emails show that Lerner was in contact with Kevin Kennedy, who helped prosecutors with their John Doe investigation of conservative groups after the recall election of Wisconsin Gov. Scott Walker. Certainly there is enough evidence for the Justice Department to contemplate criminal charges or civil litigation for the deliberate violation of citizens’ rights.

But in this Justice Department, self-identified conservative citizens, opposed to the administration’s policy goals, are simply deemed not worth the effort. They are left to fend for themselves, while Justice blames mere bureaucratic incompetence for the efforts to impede such citizens’ lawful activity.

Whether Lerner faces the threat of jail for her chicanery is not, in the grand scheme of things, very important. But the administration’s particular view of which citizens’ rights are worth protecting is more significant. While President Obama’s days in office are numbered, the tenures of the people he placed in power depend on the results of next year’s election.

Want to know what really happened over at the State Department while Hillary Clinton ran the place? Don’t expect this Justice Department to ever show any interest in the topic. It will just blame more bureaucratic screw-ups.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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