Real and Perceived Bias in the IRS Investigation

by Hans A. von Spakovsky
The DOJ has an Obama donor running the investigation and won’t do anything about it.

So, how’s that Justice Department investigation into alleged IRS targeting of conservative organizations going?

No progress reported to date, but perhaps that’s because the career Justice Department lawyer leading the investigation, Barbara Bosserman, is heavily invested in President Obama and the Democratic party. Specifically, Bosserman has given them $6,100 in political donations since 2004, sending $5,600 to Obama’s presidential campaigns and $500 to the 2012 Obama Victory Fund.

On Wednesday, House Oversight Committee chairman Darrell Issa (R., Calif.) and regulatory-affairs subcommittee chairman Jim Jordan (R., Ohio) sent Attorney General Eric Holder a letter expressing their concern about the ‘”startling conflict of interest” this represents. It was incredible, they wrote, that “the department would choose such an individual to examine the federal government’s systematic targeting and harassment of organizations opposed to the president’s policies.”

The letter further complained about the Justice Department’s refusal to provide any information or updates on the status of the investigation. The FBI cannot disclose sensitive information during an ongoing criminal investigation, but an active investigation does not prevent the FBI and the Justice Department giving Congress basic information regarding the status of the investigation that does not compromise their work. The letter notes that the FBI offered to meet with Representative Jordan to do exactly that but later “rescinded” the offer “after [Justice] Department officials apparently interfered.”

Justice has tried to keep the entire investigation under wraps. Indeed, only by questioning current and former IRS employees were Issa and Jordan able to discover that Bosserman was the lead lawyer on the operation.

What makes Bosserman’s selection doubly odd is that she doesn’t even work in the Public Integrity Section of the Criminal Division, which is responsible for investigating and prosecuting public corruption. Rather, she’s a lawyer in the Civil Rights Division, the most politicized division within the entire Justice Department. It’s certainly possible that the IRS practices under investigation may be civil-rights violations, but it’s curious that Attorney General Holder chose to dip into that talent pool for this particular lawyer to lead this investigation, rather than tap someone from the Public Integrity Section.

Justice Department spokeswoman Dena Iverson said in a statement that Holder would not remove Bosserman because “it is contrary to department policy and a prohibited personnel practice under federal law to consider the political affiliation of career employees or other non-merit factors in making personnel decisions.” The problem with this claim is that it is not true.

Taking a lawyer off a particular case because of a possible conflict of interest is not a “prohibited personnel practice” like firing, terminating, or changing the pay of someone for political reasons. Indeed, Justice Department regulations (28 CFR 45.2) clearly state that DOJ lawyers must avoid even “an appearance of a conflict of interest likely to affect the public perception of the integrity” of an investigation or prosecution.

No one questions the right of career employees to make political donations. This is allowed under the Hatch Act and applicable DOJ regulations, as explained by the department’s Ethics Office. But Bosserman’s considerable campaign contributions certainly raise the appearance of a possible conflict of interest in her ability to make unbiased, objective decisions in an investigation that could prove very embarrassing to the president she supports.

Contrary to Iverson’s claim, the Justice Department has previously acted in the exact way she now says it cannot. During the investigation into the unjustified dismissal of the New Black Panther Party voter intimidation case by the Justice Department’ s Office of Professional Responsibility, OPR removed the first career lawyer assigned to the investigation, Mary Aubry, after reports surfaced that she had contributed more than $7,000 (almost the same amount as Bosserman) to the Democratic party and Democratic candidates including Barack Obama. In fact, two veterans of the Civil Rights Division told me that DOJ removes attorneys from cases all the time for such perceived possible conflicts of interest. One of them also told me that Bosserman was more of a “research” attorney who almost never goes to court, which seems an odd choice to head up such a significant investigation.

Given what happened in the IRS case, especially the suspicion that conservative organizations were specifically targeted by IRS officials to help dampen public opposition to President Obama’s reelection, the Justice Department should be making every effort to conduct an objective investigation and avoid any questions about the objectivity of the staff involved.

And it’s not just conservatives who think so: DOJ inspector general Michael Horowitz sent a memorandum to Eric Holder in December reminding him that “public trust in the Department, its senior officials, and its employees is essential to every aspect of the Department’s operations.” One of the biggest challenges, according to Horowitz, is the Civil Rights Division, where Bosserman works. The Office of the Inspector General reported that the way the division has handled cases “risked undermining public confidence in the non-ideological enforcement” of federal law.

The appearance of possible bias by the lead lawyer in this investigation is a very serious issue. The Justice Department’s spokeswoman attempted to dismiss it out of hand, but the rationale she offered is completely spurious. In fact, failing to properly resolve the situation will call into question the integrity of not just this case, but the entire Department of Justice.

— Hans von Spakovsky is a senior legal fellow at the Heritage Foundation and the former counsel to the assistant attorney general for civil rights at the Justice Department.

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