IRSgate Obstruction of Justice: Time for a Special Prosecutor
DIARY / STEVE BERMAN
The IRSgate scandal has entered a new phase. We are no longer thinking in terms of abuse of power, although that allegation certainly has an abundance of evidence already. Now we’re talking about some real coverup crimes; actual felonies with jail time. Those involved with the IRS coverup have known this from the beginning. Congress must appoint a Special Prosecutor.
Lerner is a lawyer, and she began her career as a staff attorney at the Department of Justice’s criminal division, then moving on to the Federal Election Commission and served there as head of the enforcement division. She knew exactly what she was doing when she repeatedly asserted her Fifth Amendment rights at Congressional hearings.
Try looking at this from a prosecutor’s viewpoint. Allegations of abuse of government power for political purposes are made, and the central figure in the case consistently asserts self-incrimination protection. Then, when additional evidence is subpoenaed, it’s found that the organization employing the figure has lost critical evidence. It smacks of something called obstruction of justice.
The IRS points to a policy claiming that
IRS policy requires employees to determine for themselves whether their e-mails constitute a record under the Federal Records Act. If so, “the email must be printed and placed in the appropriate file by the employee,” according to a letter to Congress from Leonard Oursler, the IRS’ director of legislative affairs. It’s unclear whether Lerner did so.
So, at a minimum, Lerner probably violated the Federal Records Act, although proving this is going to require some serious forensics.
There’s a more effective route. Starting with 18 USC § 1510, Obstruction of criminal investigations, and applying 18 USC § 371, Conspiracy, a prosecutor just works his or her way down the chain, everyone who ever handled Lerner’s computer, worked on it, performed the backups, erased the tapes, and keeps going until someone cracks. Offer that person immunity to testify, and you can begin rolling up the gang. This is not a new strategy, it’s been used against criminal enterprises for decades. Lerner has to be intimately familiar with it, and she’s keeping her options open, regardless of offers of protection and support from the White House (who can trust them to follow through when the heat turns up?).
This is why a Special Prosecutor is called for. Even Government Executive’s website agrees with this.
Nothing has changed. The White House is stonewalling the IRS investigation. The most benign explanation is that Obama’s team is politically expedient and arrogant, which makes them desperate to change the subject and convinced of their institutional innocence. That’s bad enough. But without a fiercely independent investigation, we shouldn’t assume the explanation is benign.
Congress has a responsibility to the citizens they represent to pursue this matter wherever it leads. Whether Republican or Democrat, the principles of government for the people, of the people, and by the people demand an answer. It’s time for a Special Prosecutor.