The IRS Scandal and the Politicization of Justice

If you want a good illustration of how Attorney General Eric Holder has politicized the Justice Department and its prosecutorial decision-making, all you have to do is look at what Justice has not done in just one part of the IRS scandal. Despite its agreement to settle a lawsuit filed by the National Organization for Marriage against the IRS for the illegal disclosure of confidential tax information, it has not prosecuted any of the individuals or organizations who illegally disclosed and published that information.

The IRS, which was represented by Justice Department lawyers in the civil case, agreed to pay NOM $50,000 at the end of June over the agency’s illegal disclosure of confidential tax return information. 501(c)(4) organizations like NOM are required to file an IRS tax form, Schedule B, listing all of their donors who have contributed more than $5,000. But under federal law, that information is not available to the public since forced disclosure would obviously violate the First Amendment rights of the organization.

In March of 2012, NOM discovered that its Schedule B with all of its confidential information had been posted on the website of the Human Rights Campaign and the Huffington Post, disclosing the names and addresses of major donors. NOM is a conservative organization trying to preserve traditional marriage and the Human Rights Campaign is a very liberal, pro-gay rights organization that is a big ally of the Obama administration and devoted political enemy of NOM. In fact, HRC’s president at the time was Joe Solmonese, the co-chair of President Barack Obama’s re-election campaign. This list generated stories such as in the Huffington Post critical of Mitt Romney because a political action committee linked to Romney had contributed to NOM.

NOM was able to determine that this Schedule B had come from the IRS because a computer forensics expert uncovered the official internal IRS markings that had been obscured on the HRC website. Through the investigation of the House Ways and Means Committee into the IRS targeting of conservative organizations, NOM discovered in October 2013 that an IRS employee had given the Schedule B form to Matthew Meisel. Meisel had been an employee of Bain & Company, the company where Mitt Romney had served as the interim CEO in the early 1990s.

Through discovery in the civil case, NOM found out that Meisel had turned the form over to the HRC, which described Meisel as an “armchair activist.” Meisel, however, refused to answer any questions about his involvement, asserting the Fifth Amendment because of the potential for criminal prosecution. Meisel could have been forced to answer questions, particularly about the “promising conduit” he claimed to have for NOM’s donor information in an email, but DOJ refused requests by both Meisel and NOM to grant Meisel immunity, even though it has demonstrated no interest in criminally prosecuting Meisel.

There is no question that the IRS violated federal law when it disclosed NOM’s confidential donor information. That is why DOJ agreed to settle the case and pay NOM a large sum of money. But under the applicable law, 26 U.S.C. §7213, everyone involved in the disclosure – and the publication – also may have criminally violated the law, from the IRS employee to Matthew Meisel to the HRC and the Huffington Post. That is because it is a felony punishable by up to five years in jail to not only willfully disclose confidential tax returns, but “to print or publish in any manner” such returns.

The Holder Justice Department has known for more than two years that one of its political allies headed by the co-chair of President Obama’s reelection campaign, as well as one of its media supporters, may have broken federal law when they illegally published NOM’s confidential donor information. 

It has now been more than a month since DOJ agreed to settle NOM’s lawsuit against the IRS, more than two years since the original violation of the law occurred by HRC and the Huffington Post, and at least nine months since a House Committee and NOM discovered the intermediary who engineered this disclosure, Matthew Meisel (we don’t know how much earlier the IRS or DOJ knew that fact). Yet there has been no criminal prosecution of anyone involved in this very serious violation of the law.

But that should be no surprise. After all, the Justice Department has been supposedly conducting a criminal investigation into the IRS targeting of conservatives since Holder announced an investigation in May of 2013 without result. DOJ investigators apparently had no idea that the emails of Lois Lerner and other key employees had been lost; investigators had not bothered in all that time to interview any of the victims; and Holder put an Obama campaign donor who works in the Civil Rights Division in charge of the investigation – a lawyer with no experience in this type of investigation at all.

As we outline in our new book, Obama’s Enforcer: Eric Holder’s Justice Department, the attorney general has politicized the Justice Department to an unprecedented degree never seen before. This is just another example of it. Holder is an ideologue and a politician first, someone who considers himself part of the president’s political team, and the attorney general of the United States a very distant third. Race and politics infuse all of his decisions and the decisions made by his subordinates and appointees throughout the department.

A long-time employee of Justice told us something about the Civil Rights Division that really applies to the entire Justice Department. That employee said that Holder has “racialized and radicalized” DOJ to the “point of corruption.” He has “embedded politically leftist extremists in the career ranks who have an agenda that does not comport with equal protection or the rule of law; who believe that the ends justify the means; and who behave unprofessionally and unethically.” 

Don’t expect justice to be served, the law enforced, or the interests of good government to be followed in the IRS scandal or the inexcusable actions that were taken against NOM by the Obama administration and its political friends. That won’t happen under this attorney general.

Hans A. von Spakovsky is former Justice Department official and contributor at NATIONAL REVIEW ONLINE. John Fund is the national affairs correspondent at NATIONAL REVIEW ONLINE. They are the coauthors of “Obama’s Enforcer: Eric Holder’s Justice Department” (HarperCollins/Broadside 2014).