Originally published on Forbes.com.
If Lois Lerner is a criminal, exactly what kind of a criminal is she? If you spend much time reading IRS scandal or, as I like to call it, Teapartygate material, you will often encounter some form of the question that Joe Otto asks in his post titled Why Isn’t Lois Lerner In Prison Yet? , since as he notes “ Lois Lerner’s decision to weaponize the IRS against Tea Party groups is absolutely criminal! ”
OK. Well, I’m a little bit of a geek and I’m fairly certain that there is not a section in the United States Code titled – Weaponizing IRS against Tea Party groups -, at least not yet. Give them time. There will probably be a constitutional amendment to say that the Eighth Amendment does not apply in cases of IRS Weaponizing, so that the punishment can be really unusual. Anyway we’re not there yet, so I’ve been trying to figure out what the specific crimes are that Lois Lerner can be charged with.
I’m Probably Not The Right Person To Figure It Out
I’m a CPA and mainly prepare returns and do planning for people who, while interested in minimizing their tax liabilities, want to be in compliance. So I have been blessed with minimal exposure to law enforcement. I’ve picked up a good bit of legal knowledge in a variety of areas such as real estate, probate and contracts, but I always defer to attorneys. Criminal matters are pretty much a mystery to me. Being able to identify the mistake that detectives make that the prosecutors will have to deal with in the second half of Law & Order does not qualify one as a criminal law expert.
I Do Know Who To Ask
I did however find someone with extensive knowledge of criminal law, particularly in the tax area and lengthy experience both inside the IRS and representing taxpayers. He or she does not want to be identified, so I will use Terry, one of my favorite androgynous names, from here on. I just flipped a coin and it came up boy, so I will use male pronouns.
A Scenario And A Question
One of the scenarios that fits a lot of the facts that have come out so far is that Lois Lerner was frustrated that people inside the IRS were not serious enough about dark money 501(c)(4) groups being in violation of the law. Like outright lying when they filled out Form 1024 and answered the question:
Has the organization spent or does it plan to spend any money attempting to influence the selection, nomination, election,or appointment of any person to any Federal, state, or local public office or to an office in a political organization?
Now you and I both know that IRS Criminal Investigation is the only federal agency that can investigate potential criminal violations of the Internal Revenue Code,
but if Lois Lerner could not get those armed accountants to pay much attention to crimes that did not result in any tax loss, can you really blame her for putting some Forms 1024 in her purse and bringing them over to the FBI?
Some sort of scenario like that was the basis of my question to Terry.
If Lois Lerner were to be criminally charged, what would they be charging her with?Sending confidential tax info to DOJ? If DOJ didn’t act on it, is there really a crime? If the FBI said “Hey why did you send us this?” would it be no harm no foul?
There Is A Crime There
Terry’s short answer was Section 7213(a) which reads in part:
It shall be unlawful for any officer or employee of the United States or any person described in section 6103 (n) (or an officer or employee of any such person), or any former officer or employee, willfully to disclose to any person, except as authorized in this title, any return or return information (as defined in section 6103 (b)). Any violation of this paragraph shall be a felony punishable upon conviction by a fine in any amount not exceeding $5,000, or imprisonment of not more than 5 years, or both, together with the costs of prosecution, and if such offense is committed by any officer or employee of the United States, he shall, in addition to any other punishment, be dismissed from office or discharged from employment upon conviction for such offense. (Emphasis added)
I highlighted “willfully”, because Terry pointed out that it is a very important qualification.
BTW, the statute requires willfulness – the same element as for most tax crimes. The definition of willfulness is the voluntary, intentional violation of a known legal duty (that is the famous Cheek standard). That requires at a minimum that Ms. Lerner have known that it was not legal to make the disclosures and made an intentional choice to violate that legal prohibition. That is a heavy burden to bear.
A prosecutor would have to prove that Lois Lerner knew she had a legal duty not to disclose the information to the FBI and chose to violate that duty knowing that the violation was criminal – not that she should have known, rather that she did know. Terry thinks it would be real tough to get a conviction since she would be tried in Washington.
Terry told me that it would be TIGTA (Treasury Inspector General for Tax Administration) that would be responsible for investigating the violation
But There’s More
Terry gave me a couple of other crimes that a prosecutor might consider:
For example, Ms. Lerner told the HUAC – excuse me, the Issa Committee – that she did not commit a crime before invoking the Fifth Amendment. If she really is guilty of a crime, she perhaps could be prosecuted for that either as perjury if she said it after being sworn or false statement under 18 USC 1001(a) if she said it before being sworn. Rarely, however, would that be charged. It is very close to the exculpatory no that the Supreme Court says can be prosecuted but DOJ will not prosecute if there an unembellished denial of guilt. A related charge might be obstruction of Congress under 18 USC 1505 (2d paragraph) by denial of guilt / assertion of innocence to the Committee. That would be rare on the unembellished claim of innocence, but in a punitive environment one could imagine it could be done.
Note that that charge would be something of a pile on, since there would have to be some other crime that she was lying about.
There is one other possibility. I suppose that, if the prosecutor could show beyond reasonable doubt a political rather than a tax administration motive on her part in the handling of applications (e.g., the BOLO list), there could be some type of civil rights or oppression charge, perhaps even a § 7212(a) charge (tax obstruction) for impairing or impeding the function of the IRS or even a Klein (or even offense) conspiracy for impairing or impeding the lawful function of the IRS. Both of these crimes are felonies, although 7212(a) is a 3 year felony.
Lois The Discloser?
So that’s as good an answer so far as I could get to the question of what type of a criminal Lois Lerner might be. I’m not sure what you call somebody who violates 7213(a). Maybe you call her a discloser. I don’t know. It sounds kind of boring, I think I’d rather be a pirate.
What’s Coming?
I’m sometimes surprised that things I think are common knowledge are not that well known.
So do you youngsters know why we name things scandals by adding “-gate” to the name? Well of course it is because of Watergate, which was not a scandal about water. Watergate was the name of a burglarized building, which led to the resignation of President Nixon. There were some really exciting hearings, which I mostly missed because I was working a lot of overtime that summer of 1973. I’ve been reading about the hearings among other things in a book titled The Invisible Bridge:The Fall of Nixon and the Rise of Reagan.
One passage about somebody who was watching really struck me:
A ten-year-old from Hawaii traveled with his grandma and mother and sister on his first visit to the mainland, including Disneyland, the Grand Canyon, his grandparents’ home in Kansas, and Yellowstone, watching the PBS reruns at Howard Johnson’s motels every night before bed. He later became the forty-fourth president of the United States.
So I am working on a comparison of Watergate to Teapartygate. My research with Terry was meant to be part of that, but I thought it was so good that it rated a post of its own. I hope to finish the piece next week, but between the holidays and year end planning, I’m not making any promises.
Note
I just checked and note that our President was actually 11 turning 12 at the time of the hearings. He was born August 4, 1961 somewhere or other. One more thing to investigate. I also have noted that Watergate v Teapartygate is hardly original. George Will raised it in the bygone days of the spring of 2013. I will forever be grateful to George Will for introducing me to the work of James Gould Cozzens in a 1980 column. That doesn’t mean he is right about everything. My treatment of the comparison will likely be the first one done by a tax geek history major, so there may be something worthwhile in it.
Reader Challenge
Maybe there are other crimes that Lois Lerner could be indicted for. If you think so put it in the comments. Please cite a specific statute and a link to something that supports the elements of that crime.