As we continue to bring you analysis this week of our recent win in the IRS case, we are reminded of how much this issue has developed since it was first discovered.
To be clear – the Obama Administration’s IRS targeting of Tea Party and other grassroots conservative groups is one of the longest running scandals in President Obama’s nearly eight-year administration – and it is still ongoing. After nearly seven years this December, one of our clients has still not received a determination on their submitted tax-exempt application.
You may remember that the first nationwide Tea Party protest was held in February of 2009 in response to the way in which ObamaCare was being forced through Congress in addition to the countless bailouts.
Thereafter, the Supreme Court announced its decision in Citizens United establishing that corporations and labor unions enjoyed free speech protections related to elections. Writing for the majority, Justice Kennedy affirmed that “[i]f the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
As a tidal wave of grassroots activism began to roar throughout the country, the Obama Administration attempted to quell this activism by everyday Americans by beginning to develop an unconstitutional and illegal system of targeting and abuse. The Administration’s IRS began pulling some tax-exempt applications out of the normal screening process for additional scrutiny (including the issuance of onerous demand letters for additional information) of organizations seeking tax-exemption whose names included the terms “Tea Party,” “Patriots,” “9/12,” or other conservative-sounding names, such as “We the People” or “Take Back the Country.”
In full disclosure, a proper and thorough timeline of this scandal would take thousands of pages to fully discuss everything that has occurred to date. For example, one law professor, in particular, has kept a daily blog for years now following the scandal and he just published “The IRS Scandal, Day 1188” earlier this week.
While we cannot cover every development of this scandal, the following timeline provides a clear and concise review of the major developments along the way:
- Back on February 25, 2010, in an email chain between senior IRS officials in Washington and field offices in Cincinnati and California, Lois Lerner’s deputy in Washington was made aware that a case involving a ‘Tea Party’ organization” had been flagged. By the next morning, this deputy requested that it be sent to Washington, “given the potential for media interest.”
- On March 16-17, 2010, the same email chain, titled “High Profile Case — EO Technical Would Like It,” continues, with the deputy acknowledging that she had “one Tea Party case up here” and instructing Cincinnati to send “a few more cases” to Washington and to “hold the rest.”
- While the IRS was beginning its campaign to interfere with the rights of our clients (plaintiffs) and similar organizations, Senator Chuck Schumer, a Democrat from New York, announced his intention to introduce the “DISCLOSE Act,” which he stated would target corporations that engaged in free speech and would “make them think twice.”
- In July 2010, Carter Hull became aware of the IRS’ practice of targeting “Tea Party cases” and began to assist in crafting and implementing that policy.
- In August 2010, IRS employees distributed a listing known as the “BOLO” (“Be on the Lookout”) list. Criteria for the BOLO list included Tea Party and other organizations with conservative sounding names that had applied for tax-exempt status under 501(c)(3) or 501(c)(4).
- On August 9, 2010, President Obama joined what the IRS and Democrat members of Congress had already started: a relentless campaign to stifle the free speech of those protesting his and Democrats’ policies and the direction of the federal government.
- On October 19, 2010, Lois Lerner stated: “So everybody is screaming at us right now: ‘Fix it now before the election. Can’t you see how much these people are spending?’ I won’t know until I look at their 990s next year whether they have done more than their primary activity as political or not. So I can’t do anything right now.”
- In the November 2010 mid-term elections, the Republicans took control of the House of Representatives and significantly weakened Democrat control of the Senate. These electoral victories were led by candidates who were associated with the Tea Party movement.
- On June 15, 2011, Republican Dave Camp, Chairman of the House Ways and Means Committee, questioned the IRS Commissioner’s veracity stating: “Every aspect of this tax investigation, from the timing to the sudden reversal of nearly thirty years of IRS practice, strongly suggests that the IRS is targeting constitutionally-protected political speech.”
- On June 29, 2011, Lois Lerner was presented a briefing paper concerning the targeting scheme and it described the targeted groups as “organizations [that] are advocating on issues related to government spending, taxes, and similar matters.”
- In July 2011, the BOLO criteria were changed to focus on “potential political lobbying” and/or “advocacy activities,” but the criteria continued to focus on organizations associated with the Tea Party or groups that had conservative philosophies.
- On February 16, 2012, Democrat Senators Bennett, Franken, Merkley, Schumer, Shaheen, Udall and Whitehouse sent a letter to the IRS demanding that the IRS investigate tax-exempt organizations for engaging in “political activities.”
- On March 2, 2012, Lerner received an e-mail from IRS Deputy Division Counsel Janine Cook referring to an article in a publication known as the EO Tax Journal about congressional investigations into the IRS’s treatment of tax-exempt applications. Lerner responded in part: “we’re going to get creamed.”
- At this same time in early March 2012, dozens of tea party organizations contacted the ACLJ about intrusive information demands from the IRS implicating their First Amendment rights. The ACLJ immediately discovered that these questions – in their content, breadth, and vagueness – implicated the free speech rights of the affected Tea Party groups. Moreover, such intrusive membership requests also run afoul of NAACP v. Alabama and implicate their rights to freedom of association.
- Within the first weeks of March 2012, the ACLJ immediately began representing nearly 20 groups in their application processes with the IRS.
- In March 2012, the IRS Commissioner testified before a House committee and denied that the IRS was targeting conservative organizations that had applied for tax-exempt status.
- On May 8, 2013, Lerner sent an e-mail to IRS Acting Commissioner Miller, stating, “I got a call today from Richard Pilger Director Elections Crimes Branch at DOJ ... He wanted to know who at IRS the DOJ folk s [sic] could talk to about Sen. Whitehouse idea at the hearing that DOJ could piece together false statement cases about applicants who "lied" on their 1024s --saying they weren't planning on doing political activity, and then turning around and making large visible political expenditures. DOJ is feeling like it needs to respond, but want to talk to the right folks at IRS to see whether there are impediments from our side and what, if any damage this might do to IRS programs. I told him that sounded like we might need several folks from IRS.”
- On May 10, 2013, Lois Lerner apologized in a speech before the American Bar Association for a pattern of misconduct whereby the IRS intentionally and systematically targeted for additional and unconstitutional scrutiny conservative organizations applying for tax-exemption. At this point in time, the ACLJ ultimately had represented 27 Tea Party groups from 17 states and began the painstaking process of resisting, group by group, the IRS’s unconstitutional demands. In this speech, Lerner blamed low-level workers in Cincinnati. Based on the facts above that have been found out subsequently and were obvious by our client’s letters, this was patently false. Keep in mind – 15 letters to our clients were from Lois Lerner herself.
- On May 14, 2013, the Treasury Inspector General for Tax Administration (“TIGTA”) released the report of an IRS audit it initiated based on concerns expressed by Members of Congress and some in the media about the targeting of certain conservative organizations seeking tax-exempt status.
- TIGTA reported that the IRS, both before and during the 2012 election cycle, had engaged in the following:
- Targeting of tax-exempt applications for additional scrutiny and inquiry based on “inappropriate criteria” – including organizational names and policy positions;
- Significantly delaying the processing of these applications, keeping them open over twice the length of time typically required to process tax-exempt applications; and
- Requesting additional information from these applicants that was entirely unnecessary and irrelevant to the IRS’s determination regarding the organizations’ respective tax-exempt statuses.
- The letters issued to “Tea Party” applicants, according to TIGTA, requested such inappropriate and irrelevant information as (1) donor names; (2) a list of issues of importance to the applicant organization, as well as the organization’s position regarding those issues; (3) the type of conversations and discussions between members and participants at organization activities; (4) whether the organization’s officer(s) or director(s) have run or plan to run for public office; (5) the political affiliation of the officer(s) or director(s) of the organization; (6) information regarding the employment (other than for the organization) of the organization’s officer(s) or director(s); and (7) information regarding the activities of other organizations with which the applicant had a connection.
- The IRS asked one of our clients to provide names of individuals who volunteered with the organization.
- The IRS asked another one of our clients to provide “a temporary Username and Password” with which IRS employees could access the organization’s website.
- According to TIGTA, at least as early as March 2012, Miller was aware that the additional information being requested from Tea Party applicants included donor information. Rather than halt such requests, however, Miller indicated that IRS officials and employees processing these applications should permit those applicants who complained about the request to refrain from sending in the donor information for the time being, but only with the clarification that the IRS might later require the applicant to provide such information.
- In May 2013, White House Press Secretary Jay Carney claimed the misconduct started in May 2012. However, the truth is different altogether.
- On May 14, 2013, Attorney General Eric Holder announced a joint DOJ/FBI investigation into the IRS scandal.
- On May 15, 2013, President Obama condemns misconduct at the IRS.
- On May 22, 2013, Lois Lerner stated her innocence before the House Oversight Committee and attempted to plead the fifth.
- On May 29, 2013, the ACLJ filed the lawsuit in federal court in Washington, D.C., on behalf of 25 Tea Party and conservative organizations against the U.S. Attorney General, Treasury Secretary, and Internal Revenue Service – including top IRS officials.
- On June 4, 2013, four of our clients testified before the House Ways and Means Committee.
- On June 25, 2013, the ACLJ filed a first amended complaint on behalf of 41 total conservative groups in the federal lawsuit against the IRS.
- In July 2013, the ACLJ discovered that the IRS Chief Counsel, a political appointee of President Obama, was involved in reviewing applications from Tea Party groups in advance of the 2010 election.
- In September 2013, e-mails surfaced (discussed above) showing the full scale of who knew what and when. It wasn’t just Cincinnati. These newly revealed emails clearly contradicted the storyline put out by the White House and the IRS that this scheme originated with a couple of rogue, low-level employees in a satellite office in Ohio. Secondly, it clearly showed the political motivation behind the targeting scheme – a motive that Obama Administration officials continue to deny.
- On October 18, 2013, the ACLJ filed a second amended complaint adding additional claims, and additional evidence showing the politically-motivated attacks on conservative organizations.
- In November 2013, right before the holidays, the Obama Administration doubled down by proposing new regulations and rules that would severely limit the speech of conservative groups.
- On January 9, 2014, it was revealed that top Obama campaign donor ($6,750) Barbara Bosserman was the Department of Justice lawyer overseeing the criminal investigation.
- On February 2, 2014, in a Super Bowl Sunday interview with Bill O’Reilly, President Obama said IRS officials were merely confused about how to implement the IRS code and there were just “some boneheaded decisions.” When pressed, he stated that there was not even a “smidgen of corruption.”
- On February 5, 2014, it was revealed through newly released e-mails that Treasury Department officials, high-ranking IRS attorneys in the Tax Exempt and Government Organizations Division, and Lois Lerner, the IRS official at the center of the IRS targeting scandal, were planning regulations off the record to further restrict conservative groups while the IRS was systematically targeting conservative and Tea Party organizations.
- On February 6, 2014, ACLJ Chief Counsel Jay Sekulow testified before the House subcommittee on Economic Growth, Job Creation, and Regulatory Affairs on the issue.
- On February 21, 2014, the ACLJ launched the next phase of its opposition to the IRS targeting scheme by filing a formal objection to the IRS’s unconstitutional proposed regulations of 501(c)(4) organizations.
- On March 5, 2014, Lois Lerner once again pleaded the Fifth and refused to answer any questions about the IRS targeting scandal.
- On April 9, 2014, the House Ways and Means Committee voted to recommend criminal charges against Lois Lerner, citing three specific violations of federal law.
- On May 7, 2014, the House of Representatives voted 231-187 for a resolution holding Lois Lerner in contempt.
- On May 8, 2014, the IRS finally agreed to turn over all of Lois Lerner’s emails to the House Ways and Means Committee. The House also passed legislation calling for Special Counsel.
- On May 8, 2014, it was reported in the Washington Times that House Republicans found that 10% of tea party donors were audited by IRS.
- On June 9, 2014, Rep. Darrell Issa sent a letter to IRS Commissioner John Koskinen demanding more information after new revelations that the IRS transmitted 21 disks, constituting a 1.1 million page database of information from 501(c)(4) tax exempt organizations, to the FBI in October 2010. The information was to be used in investigations of nonprofit groups' political activity, and contained confidential taxpayer information protected by federal law. The IRS withheld it from the House Oversight and Government Reform Committee for over a year.
- On June 13, 2014, House Ways and Means Committee Chairman Dave Camp reported that the IRS claimed to have lost Lois Lerner emails from a period of January 2009 – April 2011.
- On June 20, 2014, White House spokesman Josh Earnest told reporters that the Obama administration opposes appointing Special Counsel.
- On June 20, 2014, IRS Commissioner John Koskinen testified before the House Ways and Means Committee that Lois Lerner’s hard drive was destroyed and recycled in line with normal procedures. Additionally, he claimed that all backup tapes had been erased.
- On June 23, 2014, The Washington Free Beacon reported that John Koskinen has contributed nearly $100,000 to the Democratic Party during his lifetime.
- On March 31, 2015, the DOJ announced that it will not pursue criminal contempt charges against Lois Lerner, finding that she did not waive her Fifth Amendment rights.
- On July 29, 2015, ACLJ Chief Counsel Jay Sekulow testified on Capitol Hill before the Senate Judiciary Committee’s Subcommittee on Oversight, Agency Action, Federal Rights, and Federal Courts.
- On October 23, 2015, the Department of Justice advised Congress that it was closing its investigation and confirmed that it would not recommend criminal charges be filed against former Director of Exempt Organizations Lois Lerner or any other IRS official.
- On October 25, 2015, Rep. Jason Chaffetz (R-UT) introduces a resolution to begin impeachment proceedings against IRS Commissioner John Koskinen.
- On June 15, 2016, The House Oversight Committee voted to censure IRS Commissioner John Koskinen.
- On July 27, 2016, Judicial Watch released 294 pages of documents obtained in a FOIA request showing that top IRS officials in Washington knew about the targeting of “Tea Party” groups two years before disclosing it to Congress, and that a public FBI interview with IRS a senior official revealed: “he thought the cases were being pulled based upon political affiliations”.
- On August 1, 2016, Judicial Watch released 105 pages received from a FOIA request showing FBI interviews with Cincinnati IRS employees reveal that IRS DC headquarters delayed Tea Party applications; agent described ‘DC is like a black hole.’ – comment made by a Cincinnati Group Manager (Washington, DC) about DC’s delay beginning in 2010 and lasting through the Obama reelection campaign in 2012; the Obama IRS orchestrated a deliberate policy to delay these applications.
- On August 5, 2016, the ACLJ won a major victory in its IRS case. The court unequivocally agreed with our position that the IRS’s targeting of conservatives has not ended and that our clients – numerous conservative, Tea Party, and pro-life groups – deserve to have their day in court.
With this recent victory in hand – we move forward with our continued fight for our clients and their First Amendment rights. To be sure, the IRS’s scheme had a dramatic impact on these targeted groups and that’s why we continue our fight. Stand with us in support of the First Amendment and sign our petition today to end the IRS abuse here.
This post is a compilation of numerous ACLJ memorandums written by Miles Terry, Joseph Williams, and a team of ACLJ legal clerks.