The Intimidation Game

by Kimberley Strassel

  Wilkins’s IRS office oversaw the review of test applications in 2011, and the guide sheet that screeners received in 2012 that led to all the interrogatories. Put another way, this was a Democratic appointee’s office that was filtering conservative applications. Wilkins would claim in an interview that while he was aware of “complaints” about targeting, he didn’t really know what had happened until he read the TIGTA report. That was one of his more fulsome answers. Wilkins would instead recite the phrase “I don’t recall” more than eighty times during his congressional interview.

  To this day, we still have no evidence if the White House was directly involved in the IRS scandal. But the closest link that exists is Wilkins. The Obama appointee was at the IRS from the minute it started suppressing, through the dark days of the questionnaires, through the Lerner admission, through the aftermath. Even as every other IRS leadership role changed hands, Wilkins didn’t move from his office. He’s still there today.

  * * *

  Within days of her admission and apology, Congress had invited Lerner to testify. Investigators had already realized that she was at the epicenter of the story, and Jordan knew she’d made misrepresentations to the committee. Perhaps for that reason, her attorney immediately informed Congress that she intended to assert her Fifth Amendment rights and asked that she be excused from appearing. Issa was having none of it, and compelled her to attend. What followed was a spectacle, as Lerner metaphorically flipped off the nation.

  Lerner showed up on May 22 having made clear her intention to assert the Fifth. The committee was ready for it. Lerner instead responded to the committee’s first inquiry with a long and combative statement. She recited a potted history of her government tenure and then launched into a defense. “I have not done anything wrong. 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.” Only after this monologue did she plead the Fifth, steadfastly refusing to answer dozens of questions.

  Republican Trey Gowdy, the former prosecutor, was incensed. “Mr. Issa, Mr. Cummings just said we should run this like a courtroom, and I agree with him. She just testified. She just waived her Fifth Amendment right to privilege. You don’t get to tell your side of the story and then not be subjected to a cross-examination. That’s not the way it works.” It worked for Lerner. She to this day has never answered a question for Congress. When the Oversight Committee recalled her a year later for another attempt at information, she repeated the same Fifth Amendment response to every question asked.

  Lerner only took her right to remain silent so far. Congressional Republicans would later find out that she had agreed to submit to an interview with Justice investigators. She’d agreed to do this in the context of a “criminal” probe. She’d even agreed to it with no offer of legal immunity. Lerner clearly knew she had nothing to fear from the feds. She also talked to friendly media.

  Lerner’s congressional performance was so outrageous that the IRS could no longer pretend she wasn’t a problem. It asked her to resign. In yet one more brassy move, she refused, forcing the agency to instead place her on “administrative leave.” In the regular world—outside of the federal government—this is known as paid vacation. When a review board prepared to recommend that she be removed from her position, the Obama higher-ups instead allowed her to retire with full pension and benefits.

  * * *

  Steven Miller was booted as IRS commissioner within a few days of Lerner’s apology, and Obama tapped Danny Werfel to run the IRS on an interim basis. Werfel was serving as controller of the Office of Management and Budget, and had never worked at the IRS. But what made him attractive to the administration was that few Americans had heard of him, and to the extent they had, it was in the context of eye-glazing news stories about budgets. This allowed the Obama team to pass him off as a wonky nonpartisan, even as it installed one of its own (along with Wilkins) at the top of the agency.

  Werfel immediately promised his full cooperation. His actual idea of working with Congress was noncooperation with a smile. Investigators had at the very start requested that the IRS provide them documents related to eighty-one different search terms. Mr. Werfel’s team unilaterally chose to cut that to twelve, explaining that most of the terms (including vital ones such as “c3”) were too “generic.” The IRS kept ratcheting down the number of documents it claimed it needed to turn over. And it sat on even those documents it did admit it needed to provide, offering endless inane excuses (at one point claiming to be unable for weeks to get into a password-protected disk). Two months into the investigation, the IRS had turned over just 3 percent of the required documents, derailing congressional efforts to prepare for witness interviews.

  But if Werfel was the partisan heading up the stonewall for the administration, his successor was something worse. John Koskinen, nominated in August, was so convincing in his initial vow to kick IRS ass and take names that it would be another six months before Congress realized he was fully on board with the broader Obama cover-up.

  Koskinen had spent most of his years as a corporate turnaround and fix-it artist at the Palmieri Company, a management consulting firm. He later parachuted into Freddie Mac, to stanch the financial and political fallout that hit the mortgage giant during the 2008 financial crisis. The story goes that Koskinen was offered an (unnamed) job in the early days of the Obama administration, but turned it down, telling the White House to call if they had something disastrous that no one else wanted to manage. The seventy-three-year-old breezed through his congressional hearings on promises to cooperate fully with Congress and get the IRS back on track. He was sworn in on December 23, 2013.

  Not every Republican was taken in. Koskinen presented himself as a tough old bird, but Washington old-timers knew that he was first and foremost a tough old Democrat—and a savvy one. Freddie Mac ranks only behind Fannie Mae as one of the most politically incestuous companies in the country, and it was no accident that its board recruited Koskinen when it hit hard times. The corporate veteran had a reputation for talking tough and making sense, even as he greased the political machinery behind the scenes.

  Jordan was highly skeptical from the start. “Right after he got confirmed, but before he testified, he came in for a meeting. He was on the edge of his chair and he just kept talking and talking and lecturing,” Jordan recalls. “And I wasn’t mean about it, but I made the point that in this setting, I got to ask the questions. He got ticked. So from the get-go, we weren’t exactly buddies.”

  Jordan would relatively quickly come to the conclusion that Koskinen had obstructed Congress’s investigation. He believed the new IRS head was there to make sure that the truth never came out, and to make sure the Obama administration was free to continue its war on conservative groups.

  * * *

  Luckily for the nation, there’s another guy in Washington who is never taken in by anything—not by Republicans, not by Democrats, not by anyone. Tom Fitton might count as the biggest cynic on the planet. If a fluffy, dancing unicorn with a rainbow hovering over its head smiled at Fitton on a Washington street corner, Fitton would file a lawsuit to figure out what it was up to.

  Because that’s what Fitton does. Judicial Watch is a conservative watchdog group, and its president starts from the assumption that nearly everyone in Washington is lying and that the only way to hold them accountable is to drag their documents into the sunshine. The group specializes in Freedom of Information Act requests. At any one time it has thousands pending. When agencies ignore or delay or obstruct these requests, Judicial Watch’s team of lawyers tee up litigation. Within a few weeks of Lerner’s admission, that team had filed a FOIA demand with the IRS.

  Fitton despises pretty much every government agency, but he had an extra-special reason to assume that the IRS and Lerner had done the worst. Judicial Watch, way back when, had dogged the Clinton administration, and the 501(c)(3)’s reward was a giant IRS audit. Fitton rememb
ers an IRS official telling him, “What do you expect? If you’re going to scrutinize the government, the government is going to scrutinize you.” As Judicial Watch pushed back against the tax agency, the IRS continued to add years to the audit—to the point that the group faced an audit pretty much every year of its existence. He also remembered who was running the Exempt Organizations unit at that time: Steven Miller. “Let’s just say that when the Lerner apology happened, I wasn’t very surprised by it, or to see that Steven Miller was sitting as acting commissioner,” says Fitton. “We’d already had a lot of experience with these tactics.”

  He and his colleagues quickly plowed ahead on the Lerner case because they knew they had the best shot to expose what had actually happened. The underappreciated reality of watchdog groups is that they have far more power to obtain documents than even Congress. “It’s the same dance every time,” explains Fitton. “Congress nicely asks an agency for documents, gets rebuffed. Then it gets in a subpoena battle, and has to go back and forth with an administration. And then its lawyer gets with their lawyer and they negotiate—how broad, and what Congress will or won’t get, and back and forth, and on and on, and all this time the agency still hasn’t told Congress much of anything. And if someone isn’t happy with those discussions, they have to go to court. It’s endless, and spotty. We are talking about two branches of government fighting. It doesn’t get more dysfunctional and slow than that.”

  Watchdog groups have far more power under the law. “Once a group like ours files a FOIA request, the government is obliged to tell us what documents it has, and then give them to us in a certain time frame. The burden is entirely on them, and the courts are generally supportive. It’s all about disclosure from government—rather than citizens—and that’s why it is effective.”

  Judicial Watch would by that summer file four FOIA requests related to the IRS scandal. The group gave Werfel time to reply, but by fall, when it was still getting the stiff arm, it went to court. Had it not, the country to this day wouldn’t know the degree to which the IRS and other parts of the administration were using government to shut down their opponents’ speech.

  Chapter 10

  The Unraveling

  It’s thanks to Judicial Watch that the nation now knows that the targeting wasn’t contained within the “independent” IRS. It was done in tandem with other parts of the Obama administration. Indeed, one big reason why the Justice Department showed no interest in prosecuting anyone for the IRS scandal is that it might well have been forced to prosecute itself.

  Fitton was among the biggest skeptics of the Justice Department’s probe. “We all know the indications of a real probe. Ask Karl Rove what a serious grand jury investigation looks like,” he wryly remarks, referring to the special prosecutor investigation into the “outing” of Valerie Plame, which required Rove to testify in front of a grand jury. At least some of the documents Fitton had received from the IRS also made him suspicious about Lerner’s interaction with other parts of the federal machinery. So they kept combing through the IRS documents.

  Jackpot.

  The Judicial Watch litigation is how the world came to find out about a May 2013 e-mail Lerner received from Richard Pilger at Justice. Lerner ultimately e-mailed Commissioner Miller, explaining that Pilger wanted to work with the IRS to “piece together false statement cases” against nonprofits. It was an idea that had come out of a hearing held by Democratic senator Sheldon Whitehouse, she explained, and “DOJ is feeling like it needs to respond.”

  Miller’s chief of staff was enthusiastic, suggesting that Lerner and Pilger also rope in the criminal investigations department at Justice, and the Federal Election Commission. The exchange was remarkable. It happened only two days prior to Lerner’s public apology, and proved that the administration was even then working on ways to bring down nonprofits. It provided yet more evidence that the IRS (and other departments) were acting at the pressure and request of congressional Democrats. And it exposed Justice’s willingness to prosecute Americans for exercising free speech.

  The exchange was remarkable to Jordan for a separate reason: It was the first he’d heard about it. Justice for nearly a year had been “investigating” the IRS scandal, and had never once revealed to Congress that it had previously been in on discussions with the IRS about how to go after conservative groups.

  Jordan demanded that Pilger submit to an interview. The Justice Department attorney did, and within minutes of its start fessed up that he’d in fact first reached out to Lerner about prosecutions all the way back in 2010, in the wake of the Citizens United decision. He also divulged that Lerner had shipped to the FBI that 1.1-million-page database of information about nonprofits, inviting the nation’s G-men to go on a fishing expedition. Jordan later found out that the database contained legally protected taxpayer information that should never have been handed to FBI investigators. “So what we’ve got here,” Jordan says, “is this interaction beginning in 2010, and building into full-fledged targeting not long after, and now the knowledge that lots of Washington was in this from the get-go.”

  Not that Pilger divulged much beyond this terse confession. In the rest of the interview, a Justice attorney, who had insisted on accompanying Pilger to the meet with Congress, instructed him to refuse to answer questions on at least thirty-four separate occasions. Pilger was not allowed to answer any queries about what internal discussions DOJ had about (c)(4) groups following Citizens United, what interaction Justice had with the FEC on the issue, or whether Pilger had talked to anybody at the IRS since the Lerner confession.

  * * *

  Judicial Watch’s lawsuit led to a second, equally damning revelation: that the IRS had destroyed Lerner’s e-mail.

  That’s not how Koskinen put it, of course. Not that Koskinen would have mentioned the issue at all, had not the agency been caught out.

  Fitton, even before he received the Justice Department e-mails, knew the IRS was playing some sort of obscene game with document production. Everything about the process was weird. “Usually we get documents from a government agency all at once, or in a rolling production. But the IRS here started giving us the material in reverse chronological order—starting with things in 2013 and working back. I can’t think of a time that has ever happened,” says Fitton. “Now, in retrospect, it’s clear it was to help avoid anyone finding out too soon that there were missing e-mails.”

  Jordan began wondering why his staff hadn’t been in possession of that Pilger e-mail to Lerner in 2013, or of the interaction between Lerner and Pilger back in 2010. Congress, after all, had demanded all of Lerner’s e-mails. But they’d never got any of the Pilger-Lerner correspondence.

  Congress in August 2013 had first issued a subpoena for all of Lerner’s documents from 2009 to 2013. The IRS ignored this request, arguing over its scope, taking a months-long hiatus from its promise of biweekly production, forbidding individual IRS employees from turning over their own correspondence to Congress, and redacting tens of thousands of pages of information. Congress as a result repeated the subpoena to Koskinen the moment he was sworn in. Within a few months, Koskinen was already mocking Republicans over this request, claiming that their document demand was too “broad” and warning it could take “years” to fulfill. He nonetheless promised to hand everything over.

  Jordan knew he was still missing some e-mails, but the Pilger correspondence made him take a closer look. He realized there were entire gaps in the Lerner documents. “Something was weird. The whole timeline didn’t match up,” he says. “So we went to the IRS and starting asking why.” The IRS didn’t answer him. Instead, it waited a bit. And then, in obscure language in an obscure attachment to an obscure letter it sent to the Senate in June 2014, it slipped in the news that Lerner’s hard drive had crashed in June 2011. Therefore, said the agency bluntly, it had forever “lost” much of her correspondence from the early part of the targeting.

  * * *

  Jordan couldn’t believe how long the IRS
had kept that news secret, and couldn’t believe the way in which it had then chosen to reveal it. Koskinen had vowed in March to get Congress all of Lerner’s e-mails, yet it turned out his team had already known about the hard drive crash in February. According to the IRS’s story, an attorney noticed that the agency had collected sixteen thousand documents for Lerner after April 2011, but only one hundred for the period before. The IRS was in February getting ready to deliver its first tranche of documents to Judicial Watch, and Fitton thinks it was his group’s lawsuit that made the IRS notice the missing records.

  Koskinen, according to his own testimony, learned the documents were missing in April (as did the White House), yet took until June to inform Congress, and then only did so by burying the detail in an attachment to a mind-numbingly boring letter to the Senate. “Here’s my theory,” says Jordan. “I don’t think he was ever going to tell us. If the IRS hadn’t been called out, if we hadn’t figured out something was up after that Pilger correspondence, they’d have kept this from us forever. What does that tell you about the man brought in to ‘reform’ the IRS?”

  The IRS also didn’t bother to tell the Justice Department that thousands of e-mails from their prime suspect in their “investigation” had gone missing. “Imagine,” says Jordan, “what would happen to a corporate executive if he waited months to tell federal investigators that his company had mysteriously lost its e-mails.” Justice claimed it learned about the crashed drive in the news. Hans von Spakovsky, a free-speech hero who worked for years in the Justice Department, would later point out this little detail as proof that Justice’s entire investigation was bogus. “The first thing you would do if you have the FBI as your investigator [in a] situation like this is go and seize all of the documents and information the way the FBI does when they’re investigating a private organization. A year and a half later, they clearly had not done that and didn’t even know that all of the evidence they were supposedly supposed to be looking at, all those e-mails, didn’t exist,” he testified.