The Internal Revenue Service might be done in by a group of the type it has been accused of targeting, and the agency seems to know it has been tripped up.
Several congressional committees have tried their hand at investigating the IRS, but Cause of Action (CoA), a government watchdog group, may be the ones to put the agency in a corner. IRS and Department of Justice officials are looking for ways to get the group off their tail.
“We’ve set up a trap for them,” CoA president Dan Epstein tells National Review Online. “We’re literally outsmarting them.”
For more than a year, CoA has focused on the IRS’s inconsistent application of the Internal Revenue Code’s rule 6103, which states that private taxpayer information must be kept confidential. Through a series of Freedom of Information Act (FOIA) applications, CoA methodically requested documents pertinent to the White House’s potential unlawful acquisition of such information. The IRS appears to have moved to stonewall CoA, which has not yet received the documents it requested, and Epstein says that the delays amount to the IRS’s acknowledgment to at least some wrongdoing.
Epstein and his team first requested that the IRS provide any communications regarding the president’s personally requesting taxpayer information, a power legal under 6103(g), which allows the president access to the information if he submits a letter to the agency or authorizes a member of his staff to do so. CoA knew that no president had ever exercised that authority and knew that it would get nothing back as a result. The seemingly useless gesture set the parameters of its investigation: If anyone in the White House accessed personal taxpayer information, it wasn’t by a presidential request, and was therefore unauthorized.
Next, CoA wanted records of communications by or of investigations into anyone at the White House who accessed the protected information. “What we’re doing there is chipping away consistently and strategically at the metes and bounds of 6103,” explains Epstein. Even if the agency opted to initially withhold the records, the IRS would have thereby admitted that those records exist and were likely subject to unauthorized access.
That is, the IRS did admit to having the types of records that CoA was seeking, but it refused to release them, so the nonprofit filed a lawsuit in district court. The court eventually ruled in CoA’s favor. But earlier this month, the IRS alerted CoA that it would not be handing over any of the thousands of pages of documents that a federal judge had just ordered the agency to provide.
“What that suggests to me, quite honestly, is that they were surprised by the [judge’s] decision,” Epstein says. “It’s clear from that they were taking seriously what’s in those documents.” Epstein knew that his team was on to something after a separate 800-page document request revealed e-mails between IRS and Department of Justice officials discussing CoA’s FOIA requests and how to handle the release of documents.
In a letter to CoA, the Treasury inspector general for tax administration (TIGTA) cited rule 6103. But Epstein says that the acknowledgment of more than 2,500 documents related to these correspondences and investigations illustrates the agency’s inconsistent interpretation. “We think there is a problem when 6103 can be used as a sword and a shield,” he says.
The “sword” function is a common concern regarding the IRS’s collection of private information. It comes into play when taxpayer data are used against political foes, whether they have been accessed by the administration or by its allies, such as when the donor list of the National Organization for Marriage was leaked to the Human Rights Campaign in 2012.
But what CoA uncovered with its approach was that the IRS as well as the inspector generals are also capable of using rule 6103 to protect the administration.
“When it comes to the president accessing our most private information, all of a sudden that [power] is shielded,” he says. “TIGTA’s job should not be protecting those in political power. It should be bringing enforcement actions against those who violate the law.” TIGTA is taking a hard stance on 6103, shutting out CoA and others while the IRS’s apparently looser interpretation unlawfully provides others with the private information, further complicating the troubling dynamic.
For now, CoA is evaluating how it will proceed with its fight. Although the IRS is still withholding the records of the access it provided to parties interested in private taxpayer information, the judge’s order establishes a precedent: What’s included in those recordss can be released. But the group isn’t aiming to get anyone fired or fan the flames of scandal. “We want nothing more than for these documents to reveal that there was no 6103 information going to the president,” he says. “It is not good for this country, for the American people to think that 6103 information is being disclosed to the White House.”
After all its clever maneuvering to outwit the IRS into acknowledging that there was something to hide, CoA has just one goal when it comes to 6103, Epstein says: “What we want is for this administration to be transparent on this information.”
— Andrew Johnson is an editorial associate at National Review Online.