The politics of targeting

In the wake of the IRS political targeting scandal, Congress missed two opportunities for strategic investigating: First, Congress never “specially authorized” a committee with investigative authority over the IRS’s inappropriate treatment of certain groups seeking tax-exempt status; Second, Congress never appointed a special counsel to investigate the IRS, nor hired an outside counsel to advise it in its investigations.

But on January 8, 2014, Rep. Darrell Issa (R-Calif.), the chairman of the Committee on Oversight and Government Reform, and Rep. Jim Jordan (R-Ohio), the chairman of the Oversight subcommittee on Regulatory Affairs, Stimulus Oversight and Government Spending, chastised Attorney General Eric Holder for the appointment of Barbara Bosserman, a career attorney supposedly “leading the DOJ/FBI investigation” into the IRS.

The Oversight Committee didn’t disclose that Bosserman was employed at the Justice Department (DOJ) in 2004 and 2008 when she made her political contributions to the Democratic National Committee.  It is obvious Bosserman was not hired into the DOJ because of her support for the administration and has been a committed Democrat long before a potential conflict could arise between her activities and the work she is assigned. 

If DOJ assigned a non-political appointee attorney on a matter because of her political contributions, then Chairmen Issa and Jordan should be raising Hatch Act concerns and potential questions concerning prohibited personnel practices.  Yet Issa and Jordan’s letter to DOJ Attorney General Holder was only carbon copied to DOJ Inspector General Michael Horowitz, not the Office of Special Counsel, who would be responsible for investigating prohibited personnel practices and Hatch Act concerns. 

Furthermore, if it is true that Bosserman was assigned to the matter for political reasons, then the DOJ would be subjecting itself to enormous risk by admitting to having knowingly violated the law in publicly stating that “removing a career employee from an investigation or case due to political affiliation, as Chairmen Issa and Jordan have requested, could also violate the equal opportunity policy and the law.” 

But that conclusion seems attenuated.  Moreover, neither Chairman Issa nor Subcommittee Chairman Jordan appear at all concerned that the DOJ assigned a Civil Rights Division attorney to investigate the IRS.  The Civil Rights Division mostly prosecutes hate crimes cases and conspiracies to violate civil rights. The Civil Rights Division has no jurisdiction to investigate criminal violations that result when an officer or employee of the United States who “with intent to defeat the application of any provision of [the Internal Revenue Code] fails to perform any of the duties of his office or employment” or when the President, the Vice President, or any of their employees (as well as cabinet secretaries) “directly or indirectly” requests that the IRS “conduct or terminate an audit or other investigation of any particular taxpayer”.

Now the Oversight Committee wants Bosserman to testify before it this week in yet another hearing by a committee which has already spent months investigating the IRS’s political targeting.  As Principal Deputy Attorney General Peter J. Kadzik wrote to Subcommittee Chairman Jordan on Jan. 24, “Your decision to impugn the integrity of a career attorney raises serious concerns, . . . Targeting career attorneys in this manner could plainly have a chilling effect on the valid exercise by federal employees of their basic right to participate in the political process.”

Parsing through the Oversight Committee letter, it would seem that the only point Issa and Jordan are trying to make is that they don’t like that a federal employee has exercised her political speech.  That sounds like political targeting 101. 

Epstein is executive director of Cause of Action.