Yesterday we shared a potentially explosive new aspect to the IRS targeting of groups antithetical to the White House. In essence Lerner’s attorney, William Taylor III, told a politico reporter that his client was responding to the DOJ’s request for information, not soliciting them.
Yes, there is good reason for people who have followed this story to feel as if it really wouldn’t, or couldn’t, or won’t make a difference. Given the current state of political affairs a great deal of righteous frustration that nothing shall be done regardless of who initiated the illegal machination is not misplaced…..
Also, Yes, against the recent Cochran V McDaniel outcome in Mississippi this frustrated sentiment is justified, very justified. And yes, the establishment GOP is just as opposed to the Tea Party as the establishment Democrats in this regard. Yes to all of this…
However, it really does make a difference.
If the DOJ initiated the inquiry to the IRS under the auspices of FBI investigation of 501(c)(4) group investigation -as the claim by attorney Taylor apparently makes clear- many of the outcomes toward the groups in question reconcile.
Take the example of “True The Vote”, and “Gibson Guitar”. When both groups were under scrutiny they were visited by various federal agencies like: the EPA, ATF, OSHA as well as IRS.
However, if the Department of Justice is the internal hub for all the various agencies to assemble their marching orders, then a very specific trail of known evidence is also possible based on outcomes.
The 21 CD ROM data sent by Lois Lerner (1.1 million pages) to the DOJ becomes the basis list for a comparison of consequence.
The data sent by Lerner not only included the 501(c)(4) groups, but also included 33 tax returns that included unlawfully disclosed private taxpayer information within the “Schedule B” which outlines the entities, the sponsors, and the contributors who associate with, contribute to, and participate in, the 501’s activity.
The “Schedule B” inclusion is illegal to be shared outside the IRS, and has been recognized as such by the Dept. of Justice.
However, those 33 Schedule-B lists create a data base of hundreds, perhaps thousands, of people, groups and entities. It is quite possible for external parties -lawyers for the affected parties- to use the list as a legal basis to judge whether they were specifically targeted.
Did the people, groups and entities on that list, encounter more federal agency scrutiny -in any capacity- than a random sample of similarly constructed business interests external to the group?
This is a simply a math and probability analysis based on activity as an outcome to being on a list.
If a party increased it’s exposure to federal agency review or audit simply by being on the list, in the 2010 through 2013 time period (list held by the DOJ) the court(s) would have to find in favor of any argument the group was targeted.
The legal terms “Adverse Impact” and “Disparate Impact” can be applied to any argument brought by a party against the federal government for targeting. The increase in a parties risk of scrutiny as a consequence of being on the IRS list, illegally held by the DOJ, creates the evidence in favor of the argument.
Ironically the use of both Adverse Impact and Disparate Impact, as legal tools to evaluate outcomes, has been advanced by the Eric Holder DOJ as they applied this analysis toward groups they considered outside their ideology. It would be ironic to use the preferred method of the DOJ against them.
Additionally, if we presume the appearance on the target list increases your exposure risk by even small percentages – the list created by the thirty three IRS Schedule “B’s” would establish a class of litigants for civil actions against the IRS and DOJ for targeting.
The initial IRS inspector general report has already established and affirmed that targeting did occur. So the first legal hurdle is crossed.
The subsequent congressional investigation has uncovered the illegal possession of the Schedule “B” IRS list given to the DOJ – So the class is halfway to the second hurdle.
If any party can statistically prove, by looking at outcomes, that appearance on the list created a disparate likelihood for federal agency audit the second hurdle is cleared easily and you’re off to evaluate harm.
So while many observers of this recent discovery may want to dismiss it based on the facts they are frustrated, and we have a dysfunctional congress, there is good reason to hold faith and continue fighting the good fight to squash the bastards.
If Congress cannot get them, we can take them down in civil courts.