The Unaccountable IRS

To understand the pragmatic realities of federal governance in the 21st century, one must recognize the existence of a fourth branch of government: the administrative state. We have some two million federal bureaucrats with extraconstitutional legislative powers. Not only do they write the reams of regulations that order our lives, they have the authority to enforce them capriciously. And thanks to absurd civil service protections, it is exceedingly difficult to hold them accountable for abuses of power, even when Congress demands it.

Of course, you can’t censure federal bureaucrats for their crimes if you don’t even try. On September 8, Donald Trump’s Justice Department announced it would not be reopening an investigation into the conduct of Lois Lerner, the IRS official responsible for targeting and harassing conservative groups in the 2010 and 2012 elections. That investigation had ended in 2015, when Barack Obama’s Justice Department stated it would not be charging Lerner or anyone else at the IRS because it “found no evidence that any IRS official acted based on political, discriminatory, corrupt or other inappropriate motives that would support a criminal prosecution.”

Lerner herself admitted “absolutely inappropriate” targeting had taken place but blamed it on “front-line people.” Soon after, she pleaded the Fifth in testimony to a congressional committee and was placed on administrative leave by the IRS. Emails later confirmed Lerner had a strong personal bias against conservatives (she called them “crazies” and “a—holes”), and there was an extensive and credible series of accusations that she harassed conservative groups when she worked for the Federal Election Commission in the 1990s. If all this doesn’t suggest motive and criminality, it’s still an outrage that Lerner, whose leave was never revoked, eventually retired from the IRS with a full and generous pension.

President Obama declared on national television during the height of the scandal that there was “not even a smidgen of corruption” in the agency. That’s laughable. But then, when it comes to policing executive agencies, his administration was arguably the most lawless in modern history. In 2014, 47 of the 73 federal inspectors general signed a public letter accusing the administration of intimidation, stonewalling their investigations, and generally interfering in their “ability to conduct our work thoroughly, independently, and in a timely manner.”

The promise of the Trump administration, especially in contrast to Hillary Clinton’s flagrant disregard of classification laws, was a return to accountability. Jeff Sessions, a man committed to judicial integrity, was supposed to be just the man to restore respect for the rule of law. But the attorney general seems to be missing in action. The House Ways and Means Committee asked the Justice Department earlier this year to reexamine Lerner’s case. Committee chairman Kevin Brady told the Washington Post that the department’s decision to decline “sends the message that the same legal, ethical, and constitutional standards we all live by do not apply to Washington political appointees,” who “now have the green light to target Americans for their political beliefs and mislead investigators without ever being held accountable for their lawlessness.”

Of course, Congress has also shown inaction in the face of wrongdoing here. After the acting IRS commissioner resigned during the scandal, President Obama made John Koskinen the new head. Koskinen failed to act on a congressional subpoena and let the agency delete as many as 24,000 of Lerner’s emails. He waited four months to reveal the emails were missing and told Congress the agency had confirmed there were no accessible backups. That was not true: The inspector general’s office subsequently recovered a thousand of Lerner’s emails.

Worse, Koskinen hasn’t taken steps to reform the agency and ensure such misbehavior doesn’t happen again. The Government Accountability Office concluded in 2015 that the IRS still had weaknesses that increased the risk it “could select organizations for examination in an unfair manner—for example, based on an organization’s religious, educational, political, or other views.” Yet Koskinen remains IRS commissioner. Some Republican House members filed a resolution to impeach Koskinen in October 2015, but Congress never followed through.

The Trump administration hasn’t moved to replace him since taking office, either—though it recognizes executive action can be taken to curb corruption. Some 500 Veterans Affairs workers have been fired since January in response to the department’s deadly negligence and substandard care. The IRS and other scandal-plagued federal departments and agencies should face similarly serious consequences. It would remind an overwhelmingly liberal unionized bureaucracy that it is required to serve all Americans fairly. And it would reassure the public that those who wield the power to threaten their livelihoods and right to expression are not above the law. Let’s hope accountability at the VA proves to be the template, not the exception.