Who was it who said, "everybody is guilty of something"? My high school principal, I think. Anyway, it's also a paraphrase of the warning contained in Harvey Silverglate's Three Felonies a Day, which points out that we go through our lives breaking a tangled jungle of laws, often unintentionally.
That makes us all vulnerable to prosecution on a whim—perhaps by the fine folks at the Internal Revenue Service (IRS) enforcing the country's vast and incomprehensible tax code.
That's why Judicial Watch's data dump of internal IRS documents suggesting that embattled former tax official Lois Lerner contacted counterparts at the Department of Justice about finding something prosecutable in the activities of conservative tax-exempt organizations is not surprising. Pick a spot in our society and dig deep enough, and eventually you'll find a crime. That's handy, if it suits your needs.
Then again, dig through bureaucrats' email trails long enough, and eventually you'll find something distasteful and nefarious.
Judicial Watch points, understandably, to the following exchange between Lerner and Nikole C. Flax, then-chief of staff to then-Acting IRS Commissioner Steven T. Miller as particularly damning.
Sent: Wednesday, May 08, 2013 5:30 PM
To: Flax Nikole C
Cc: Grant Joseph H; Marks Nancy J
Subject: DOJ Call
I got a call today from Richard Pilger Director Elections Crimes Branch at DOJ. I know him
from contacts from my days there. He wanted to know who at IRS the DOJ folks 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. I am out of town all next
week, so wanted to reach out and see who you think would be right for such a meeting and
also hand this off to Nan as contact person if things need to happen while I am gone —
Lois G. Lerner
Director of Exempt Organizations
From: Flax Nikole C
Sent: Thursday, May 09, 2013 8:04 AM
To: Lerner Lois G
Cc: Grant Joseph H; Marks Nancy J; Vozne Jennifer L
Subject: RE: DOJ Call
I think we should do it – also need to include CI, which we can help coordinate. Also, we need to reach out to FEC. Does
it make sense to consider including them in this or keep it separate?
Ultimately, as the scandal unfolded and ensnared much more than the "low level workers" originally blamed for the mess, no prosecutions materialized. But it's easy to see how focused interest by tax officials and federal prosecutors could have found arguable mismatches between organizations' conduct and some interpretation of a tax code that, notoriously, has no consistent meaning across the IRS. (Legal scholars debate whether the IRS should be required to adopt one interpretation of the rules and stick with it. That would be nice.)
The IRS scandal regarding tax-exempt groups actually poses a worse hazard the the thicket of unknowable laws that Silverglate warns about, since the tax code is essentially a moving target, applied in novel ways as it suits IRS officials.
Which means that everybody really is guilty of something, if you put in a little effort to find just that. And that's especially true if it's the IRS looking. That's all the more reason to stay as far away as possible from potentially hostile government officials wielding amorphous rulebooks.