Lawyers think they have finally found the smoking gun in the IRS’s tea party targeting scandal: an email from an IRS agent to her supervisors alerting them that the agency was, in fact, singling out some groups’ applications for extreme scrutiny “primarily because of their political party affiliation.”
The email was released last month as part of a massive document dump in a class-action lawsuit filed in Ohio by hundreds of conservative groups who were targeted for extra review and intrusive questioning.
It contradicts the IRS’s official stance over the years contending that conservative groups were wrongly scrutinized, but it was a result of their behavior, not their politics.
Instead, the April 1, 2011, email from Elizabeth C. Kastenberg, an official in the agency’s exempt organizations division, says it was explicitly the organizations’ politics that landed them on the target list.
“These cases are held back primarily because of their political party affiliation rather than specifically any political activities,” Ms. Kastenberg wrote in an alert to other IRS employees, including her supervisor.
Edward Greim, the attorney for NorCal Tea Party Patriots and hundreds of other groups that are part of the class-action lawsuit, said that was a major admission.
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“What Kastenberg was saying was they have all different activities, and so there’s no ’political activities’ that cut across this group. Instead, it’s really their political party affiliation they have in common,” he said.
Just weeks after her email, the issue was brought to the attention of then-senior IRS executive Lois G. Lerner, based in Washington, who was briefed on how agents in Cincinnati were handling the nonprofit status applications of tea party and other conservative groups.
Told at a July 2011 meeting that groups were being singled out under a target list, Ms. Lerner ordered that the list’s name be changed from “tea party” to “advocacy groups,” but that did not stop the intrusive scrutiny of applications, the documents say.
In fact, the scrutiny got worse. Ms. Lerner approved the practice of sending letters demanding information such as names of donors, according to the documents.
That contradicts the conclusions of the Justice Department, which under President Obama and President Trump has concluded that Ms. Lerner does not deserve to face charges over how she handled the matter. The Obama Justice Department reported that Ms. Lerner was working to clean up matters, not to continue the targeting.
Ms. Lerner was deposed in the lawsuit, but her testimony remains under seal and was redacted in the latest court filings. She and another IRS employee, Holly Paz, have told the court that they could face threats or harm from renewed attention in the case, and a judge has sided with them.
The Cincinnati Enquirer asked the court Wednesday to release the full versions without redactions, saying the judge never justified sealing the documents.
The bulk of the new filings in the case, though, try to puncture the picture Ms. Lerner painted when she first alerted the country to the targeting, planting a question at a May 10, 2013, tax law conference so she could break the news — and put the IRS spin on it — days before the agency’s inspector general released a damning report.
Ms. Lerner at the time blamed agents in the Cincinnati IRS office, where nonprofit applications are decided. The geographic separation from Washington is intended to shield the decisions from politics, according to the lawsuit.
She said the agents “didn’t do it with a higher level of review” and “didn’t do this because of any political bias.”
Ms. Lerner retired from the IRS in the wake of the scandal, which spurred multiple congressional investigations and lawsuits demanding that the tax agency clean up its act.
The Albuquerque Tea Party, which was one of the first to be flagged as a tea party case in March 2010, wasn’t approved as a nonprofit organization until this summer.
In two cases still pending in federal court in the District of Columbia, tea party groups say they fear they are still suffering the effects of the targeting. They want assurances that having been singled out for scrutiny won’t mean they will have to face more frequent audits or other penalties.
A federal judge in that case has ordered the IRS to disclose the names of employees whom the agency blames for the targeting.
In the Ohio class-action lawsuit, meanwhile, the tea party groups say the IRS subjected their applications to lengthy delays and, because the scrutiny was politically motivated from the start, it meant IRS agents were illegally looking at taxpayers’ information.
The IRS told The Washington Times that it would not comment on pending litigation or the depositions in the Ohio case, but it did seem to downplay the importance of the Kastenberg email suggesting that the agency knew it was singling out groups based on their political ideology.
“It’s important to note that this email is not a new document and has been provided to numerous congressional committees in early 2014,” the agency said.
The IRS did not specify those committees, and the email’s key contents do not appear to be cited in any of the public reports released by the panels that investigated the targeting.
The nature and scope of the targeting has been controversial from the beginning, when conservative groups told members of Congress that they felt stonewalled by the IRS.
Even as top IRS officials were telling Congress there was no targeting, the agency was fending off inquiries from its own internal auditor, the Treasury Inspector General for Tax Administration.
How many of those were conservative groups remains controversial. TIGTA released a report this month arguing that liberal-oriented groups also had applications picked out for special scrutiny from 2004 to 2013 — though to a far less significant degree than the conservative and tea party groups.
Democrats said the fact that some liberal groups faced intrusive scrutiny, and even some of the same inappropriate questions, from the IRS shows that the tax agency was out of control but not politically motivated. They said that contradicted the story Republicans tried to tell.
“It did not seem conceivable to some of my friends on the other side that there was management disarray, that it had to be political,” Delegate Eleanor Holmes Norton, the District of Columbia’s nonvoting member of Congress, said at a hearing with IRS and TIGTA officials on Wednesday.
But Rep. Jim Jordan, Ohio Republican, said — and the inspector general confirmed — that conservative groups made up a far larger portion of the targets.
In the class-action lawsuit, the tea party groups say it’s not just numbers, but also the extent of scrutiny.
In their filings, they argue that the tea party groups faced up to 17 waves of inspection, each of them potentially involving illegal scrutiny because they were spurred by illegal political considerations.
In the end, cases subjected to extra scrutiny were denied nonprofit status at a rate of about 2 percent — much higher than the rate for all other nonprofit applications, which was less than half of 1 percent.
The latest documents also detail the expansion of the targeting, starting with the Albuquerque Tea Party application in March 2010, to 50 to 100 cases by the end of that year. By December 2011, the number was 172 cases, and by June 7, 2012, 282 groups had been pushed into delays and intrusive scrutiny.
The IRS eventually admitted that it snared more than 450 groups for extra scrutiny based on its targeting criteria.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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