Wednesday, June 25, 2014

Do People Really Believe The IRS?

Let me see if I have this straight. If not - someone please correct me.

On June 3, 2011, Representative Dave Camp, (R-MI) sent a letter to IRS Commissioner Douglas H. Shulman, informing him that the House Ways and Means Committee would be investigating alleged selective enforcement of tax laws and hinted that the IRS had been targeting conservative advocacy groups applying for 501(c)(4) status.

According to the new IRS Commissioner, John Koskinen, 10 days after the letter was sent to Shulman, Lois Lerner's computer hard drive crashed and all of her e-mails were "lost" and "unrecoverable," much to the disagreement of IT specialists around the country. Only it wasn't all of Lerner's e-mails that were lost. It was only those during the time period in question and only those that went to addresses outside the IRS. Her internal e-mails were still there. Things that make you go "Hmmmmm."

Several other IRS officials also suffered mysterious hard-drive crashes in the days after the IRS received the letter. Those e-mails are also "lost and unrecoverable."

Fast forward to May 22, 2013. Lois Lerner was called to testify before the House Oversight Committee. Before she invoked her Fifth Amendment rights she made a statement.

“I have not done anything wrong,” Lerner said. “I have not broken any laws. I have not violated any IRS rules or regulations. And I have not provided false information to this or any other congressional committee.”

Then she told the committee that on the advice of her counsel she would not answer any of their questions. Is it me? How many people who have done nothing wrong hire an attorney and invoke their Fifth Amendment rights? (OK, maybe in this day and age that's pretty common but it's still odd that she'd declare her innocence then plead the Fifth.

It has now come to light that the IRS had a contract with an email archiving company, Sonasoft. It is rumored that they cancelled the contract about 30 days after Lois Lerner's hard drive crashed. Coincidence? Maybe. But certainly one that casts suspicions on the honesty and integrity of the IRS.

Fast forward again to June 23, 2014. IRS Commissioner John Koskinen testified, rather arrogantly, before the committee. Representative Trey Gowdy, (R-SC), a former and very successful prosecutor for the State of South Carolina. Gowdy is not one with which to be toyed.

Gowdy: “Well, I’m going to help you with it. Spoliation of the evidence is when a party fails to preserve evidence, there’s a negative inference that the jury can draw, from their failure to preserve the evidence. You with me? If you destroy documents, the jury can infer that those documents weren’t going to be good for you. If you fail to keep documents, the jury can infer that those documents were not going to be good for you. You’ve heard the phrase spoliation of evidence haven’t you?

Koskinen: “No, I can’t recall ever hearing that.”

Gowdy: “It’s true in administrative hearings, civil hearings, criminal hearings.”

Koskinen: “I practiced law once 45 years ago, gave it up for Lent one year, never went back.”

Gowdy: “Well let me tell you what you would have found had you stuck with it. When a party has a duty to preserve evidence or records, and they fail to do so, there is a negative inference that is drawn from their failure to preserve the evidence. It’s common sense, right? If you destroy something, the jury has a right to infer that whatever you destroyed would not have been good for you. Or else every litigant would destroy whatever evidence was detrimental to them. Agreed?”

Koskinen: “I’m not sure I think if you destroy the evidence and people could prove it, it wouldn’t be a good thing for your defense.”

Gowdy: “Well, no it’s worse than that. The jury can draw and they’re instructed, they can draw a negative inference.”

Koskinen: “Alright.”

Gowdy: If a taxpayer is being sued by the IRS administratively, civilly, or prosecuted criminally, and they fail to keep documents, the jury can draw a negative inference from the fact that they didn’t keep receipts or emails or documents. So if it’s true and applies to a taxpayer, it ought to apply to the IRS as well. Agree?

Koskinen: “Is this a trial? Is this a jury? Is that what you’re…”

Gowdy: “I say administrative, civil or criminal. I say if you want to, if you want to go down that road, I’m happy to go down there with you. In fact I’m glad you mentioned it. You’ve already said multiple times today that there was no evidence you found of any criminal wrongdoing. I want you to tell me what criminal statutes you’ve evaluated.”

Koskinen: “I’ve not looked at any statutes.”

Gowdy: Well then how can you possibly tell our fellow citizens there’s no criminal wrongdoing, if you don’t even know what statute to look at?”

Koskinen: “Because I see no evidence that anybody consciously…”

Gowdy: “But how would you know what elements of the crime existed? You don’t even know what statutes are in play. I’m going to ask you again: What statutes have you evaluated?”

Koskinen: “Uh, I think you can rely on common sense. Nothing I have seen…”

Gowdy: “Common sense. Instead of the criminal code, you want to rely on common sense. No, Mr. Koskinen, you can shake your head all you want to Commissioner, you have said today that there is no evidence of criminal wrongdoing. And I’m asking you what criminal statute you have reviewed to reach that conclusion?”

Koskinen: “I’ve reviewed no criminal statute.”

Gowdy: Alright, so you don’t have any idea whether there’s any criminal conduct or not, because you don’t know the elements of the offense.”

Koskinen: “I’ve seen no evidence of wrongdoing.”

Gowdy: “Oh well, that’s very different than no evidence of criminal misconduct Commissioner.”

Koskinen: “It seems to me that if you haven’t done wrongdoing, it would be pretty hard to argue that you had some criminal violation if you didn’t…”

Gowdy: “Well what did Lois Lerner mean when she said that ‘perhaps the FEC will save the day’?”

Koskinen: “I have no idea.”

Gowdy: “What did she mean when she said that ‘we need a project but we need to be careful that it doesn’t appear to be per se political’? You don’t think that’s a potential violation of 18242”?

Koskinen: “I have no idea if.”

Gowdy” “Because you haven’t looked at 18242. You don’t have any idea, Commissioner. You don’t have any idea whether there’s any criminal wrongdoing, or not.”

Koskinen: “With regard to the production of the evidence, the production of Lois Lerner’s emails, I have seen no evidence of wrongdoing. What else, what else…”

Gowdy: “If there were, that would be a separate criminal offense.”

Koskinen: “What else went on with Lois lerner, I’ve said in the past…”

Gowdy: “So what you’re saying is that you don’t have any idea whether she engaged in criminal wrongdoing, you’re just saying that you did not engage in any with respect to the emails.”

Koskinen: “I haven’t seen any wrongdoing with regard to the production of Lois Lerner’s emails.”

Gowdy: “You are not saying there was no criminal wrongdoing with respect to the targeting of conservative groups. I want to be very clear, you’re not saying that.”

Koskinen: “Made no judgments.”

Gowdy: "So you disagree with the President when he says that there’s not a smidgen of corruption.”

Koskinen: “There are people who have been making judgments both sides about whetheer there were…”

Gowdy: “And you know what? I’m not one of those. I’m just simply saying we will never know because you didn’t keep the evidence. The evidence was spoliated. And whether it was negligent, whether it was intentional, whether it’s reckless, we still don’t have the evidence, Commissioner.”

Koskinen: “Well you have the evidence that there is no emails from the White House. You have the Treasury emails, so the basic premise that this was an argument in a conspiracy driven by the White House…”

Gowdy: “No sir, you’re wrong about that. You’re wrong about that. You’re repeating a talking point from our colleagues on the other side that we’re obsessed with the White House. It was Jay Carney who perpetuated the myth that it was rogue agents in Ohio. It wasn’t any of us. Was that accurate? Was that first initial line of defense that this is just two rogue agents in Ohio? Was that accurate Commissioner?”

Koskinen: “Not that I know of.”

Gowdy: “Alright, so that wasn’t accurate and that came from the White House. Who said there’s not a smidgeon of corruption? Who said that, Commissioner?”

Koskinen: “Uh, my understanding it was the President.

Gowdy: “Uh, it was the President. So that was Jay Carney and the President both inserting themselves into the IRS scandal. And you want to blame us for bringing the White House into it?

Koskinen: “I haven’t blamed you at all I…”

Gowdy: “You just did, Commissioner, ya’ just did.”

Koskinen: “It’s a good argument. All I said was the White House has revealed there were no Lois Lerner emails, Treasury has given you all of their emails and to the extent that uh the argument was that Lois Lerner was conspiring and emailing back and forth, thus far I haven’t seen any emails…”

Gowdy: “You can be engaged in a conspiracy that doesn’t include the White House.

Time was called on Gowdy - too soon, it seems. Trey Gowdy knows how to handle a hostile or non-cooperative witness. Having won at least 100 cases without a loss - he knows what he's doing. They should have let him continue.

I chatted with a liberal acquaintance earlier today about this. He said that the IRS could have committed illegal acts but that this entire thing is a waste of time and money. "After all," he said... "Bush had an e-mail controversy in 2007 about the firing of some U.S. Attorneys." It really has nothing to do with today's controversy except for what he followed up with. 

"My main point is, when it's "not my guy" doing a thing, it's suddenly horrible and prosecutable. When it's "my guy" doing it, then there are excuses, if you even bother to be aware.

Incidentally, nothing ever happened to Karl Rove or Bush or anyone in his administration over the thing I referenced. So if you want to set a baseline precedent, then apparently the correct level of punishment is "shrug."

I can agree with him on the fact that punishments should be equal for equal crimes. And I admit that in 2007, I was not really politically active. I got politically active in 2008 when Hillary, not Obama, was running for President. I became anti-Obama after he won the nomination and promised to "fundamentally change America." But my political activism spawned with Hillary.

Anyway - instead of admitting they did something wrong, the IRS has spent the last two years first denying, then justifying, then again denying wrongdoing. If only they'd have admitted it and moved on...

Instead we are buried in an investigation that may or may not conclude in a positive manner. I only want the truth. I think that's what the investigation should uncover. But with the stall tactics used by the Obama administration these days, I might die waiting...

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