Federal judges rarely drop the hammer angrily on a federal agency. But it’s happening quite a bit to President Obama’s administration, especially in cases involving government transparency.
The State Department and Environmental Protection Agency are just two agencies that have flouted the Freedom of Information Act. Last March, Judge Royce Lamberth accused the EPA of “utter indifference” or even “lying” about its FOIA obligations in a case where the agency had stonewalled the release of documents until the 2012 election had passed.
Last July U.S. District Court Judge Richard Leon exploded on government lawyers representing the State Department, who had been dragging their feet about releasing former Secretary of State Hillary Clinton’s emails.
Last week, it happened again. An appellate judge issued a scathing ruling in the IRS targeting scandal — the one that broke into the news cycle all the way back in 2013.
A Treasury inspector general determined that the IRS had delayed applications from conservative nonprofit applicants, and harassed the applicants, on the basis of their apparent conservative political views. Top IRS officials admitted that the targeting had taken place, but tried to shift the blame to rogue employees in the agency’s Cincinnati office.
This week, a lawsuit brought by some of the victimized groups came before a panel of judges in the 6th Circuit Court of Appeals. The court was enraged by the agency’s pattern of resisting disclosure with every plausible and implausible argument possible.
Writing for the court, Judge Raymond Kethledge observed that thanks to IRS stonewalling “the lawsuit has progressed as slowly as the underlying [nonprofit] applications themselves: at every turn the IRS has resisted the plaintiffs’ requests for information regarding the IRS’s treatment of the plaintiff class, eventually to the open frustration of the district court.”
He also noted that almost a year after being ordered to produce the list of organizations targeted for unfavorable treatment, “the IRS still has not complied with the court’s orders,” and is instead appealing up the chain to get an “extraordinary remedy,” a writ of mandamus, essentially a rebuke to the lower court.
The IRS had begun its resistance to transparency by claiming that the information requested, including even something as simple as the names of the IRS employees involved, was privileged tax return information. After abandoning that ridiculous position, it moved on to one even more disgracefully absurd, that Department of Justice lawyers could not even review the nonprofit application files without violating taxpayer privacy. But the applicable law, Judge Kethledge noted, “expressly allows the Department’s attorneys to review a taxpayer’s return information to the extent the taxpayer ‘is or may be a party to’ a judicial proceeding.”
The IRS then claimed that it would be “unduly burdensome” to figure out which employees were the rogues who processed the applications. When the district court rejected all of these lame excuses, the IRS raised further meritless objections, proceeding from one bogus argument to another until the district judge stated flatly, “You’re just running around in circles and not answering the questions.”
During oral arguments, Judge Kethledge accused the IRS’ attorneys of “studied obstruction” and complained that they were hiding behind laws intended to protect taxpayers and not the agency. His harshest comment, although dryly stated, came at the end of the written ruling. “The lawyers in the Department of Justice have a long and storied tradition of defending the nation’s interests and enforcing its laws … in a manner worthy of the Department’s name,” he wrote. “The conduct of the IRS’s attorneys in the district court falls outside that tradition.”
There is a lot to be said about bureaucrats’ resistance to transparency, and we have said quite a bit about it previously in this space. But the real question now has to be about what the IRS is hiding. Its behavior is desperate, but it clearly prefers to expose itself to ridicule and wrath, both from the public and the judicial bench, than to confess the truth.
The truth must be ugly and it is one that the public deserves to know, and know now. Federal officials under Obama have used the awesome powers of the executive to target people who oppose administration policies. If those officials are rogues, as the administration claimed, then they need to be exposed and sacked, and prosecuted if they have committed crimes.
If, rather, excuses about rogue employees are merely a cover up of systematic targeting of political enemies, then that is a whole lot worse. Unfortunately, it is this chilling latter explanation that is strongly suggested by the administration’s systematic flouting of court orders.
What will the plaintiffs in this case find when the IRS finally obeys the law and hands over the records requested? It seems that the agency is trying to run out the clock and get the Democratic administration through the next general election.
The Obama administration has done it before, and it looks like it is doing it again.
