Conservative groups take the IRS to court

Greg Nash

Legal experts say grassroots conservative groups shouldn’t expect too much out of a pair of IRS hearings in federal district court this week.

Two conservative organizations – Judicial Watch and True the Vote – won hearings over the missing emails of Lois Lerner, shifting the center of action on the IRS investigation this week from the Capitol to a federal district courthouse.

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Conservatives call the hearings an early step to getting IRS officials under oath to discuss why the agency was unable to recover all of Lerner’s emails from 2009 to 2011, something the IRS chalks up to a hard drive crash.

Lerner, the former chief of an IRS division overseeing tax-exempt groups, kicked off the Tea Party controversy in May 2013 by apologizing for the agency’s treatment of Tea Party groups.

Some conservatives also see the hearings as a path to getting a special prosecutor to investigate the IRS, a step they’ve unsuccessfully sought for months from Attorney General Eric Holder.

But Michael McKay, a former U.S. attorney under President George H.W. Bush, said he expected the judges hearing the two cases this week would take a cautious approach to the 14-month controversy.

Democrats and Republicans continue to clash over whether the IRS’s improper scrutiny of the Tea Party groups was driven by political motivation or bureaucratic mismanagement.

GOP investigators are looking into how Lerner’s emails went missing, and whether the IRS violated a law dealing with the safekeeping of records. The Treasury’s inspector general for tax administration is also looking into the emails, according to a letter this month from IRS Commissioner John Koskinen.

“This is as much a political case as a true legal case,” said McKay, now a partner at McKay Chadwell in Seattle. “Most good judges don’t like to force themselves into a process where the political process is working itself out.”

True the Vote, which was granted a hearing on Friday, is asking the court to allow outside experts to examine IRS computers and records – in order to, as they put it in court filings, keep the agency “from engaging in and permitting any further destruction of evidence.”

The group says it is among the conservative organizations the IRS targeted. It sued the agency in May 2013, shortly after Lerner’s apology.

In its court filings, True the Vote says that lawyers for the IRS and former and current agency officials have yet to answer their questions about what happened to Lerner’s emails. The agency, sued in 2010 by a pro-Israel group that sought tax-exempt status, should have known better when it came to protecting documents, the group added.

Judicial Watch, granted its own hearing on Thursday, says the IRS failed to tell the group and the court that it couldn’t retrieve all of Lerner’s emails.

The IRS has been handing over documents to the group, after Judicial Watch filed a Freedom of Information Act request last year.

But Judicial Watch says it only heard about Lerner’s missing emails through the media, after the IRS told lawmakers about it this month. Koskinen has said he learned there was an issue with Lerner’s emails in February, and that some were missing in April.

“This will be an important hearing, as any representations to the court by the Obama administration will have ramifications way beyond misleading Congress,” said Jill Farrell, a spokeswoman for Judicial Watch.

Conservatives have also noted that Judge Emmet Sullivan, who granted the hearing in the Judicial Watch case, appointed a special prosecutor to investigate government lawyers that handled the late Sen. Ted Stevens’s (R-Alaska) corruption trial.

Sullivan said that the federal prosecutors deliberately and improperly withheld information from the defense in that case.

But legal analysts have long said that Sullivan’s appointment of a special prosecutor in the Stevens case was an extraordinary step, and McKay said there was no reason yet to believe it would be repeated with the IRS.

“That was an egregious case, and Ted Stevens was an aggrieved party,” McKay said.

With that in mind, McKay and other lawyers say they believe that the IRS will get a stern talking-to about its records-keeping habits – but perhaps little else.

Marcus Owens, who also directed the IRS division on exempt divisions, said that the agency’s process for dealing with documents “is just a mess. It’s been a mess for years.”

“I think the judge will spank the IRS lawyers for that,” said Owens, now at Caplin & Drysdale.

Owens added that the IRS, which has to protect taxpayer information, can have good reasons for producing documents more slowly.

The IRS declined to comment on the two hearings this week, saying it didn’t comment on pending litigation.