IRS Commissioner John Koskinen revealed Wednesday that he is not speaking to any potential witnesses in the missing-emails case while his agency’s inspector general conducts his own investigation.
Koskinen claimed that IRS inspector general J. Russell George told him “not to do any further investigations or interviews” with employees pertaining to hard drive crashes, and that’s why he did not voluntarily provide a key witness to congressional investigators. But Koskinen later admitted that the inspector general never told him not to cooperate with Congress.
The IRS has been nominally conducting its own internal investigation into the IRS conservative targeting scandal since 2013, but that now appears to be over.
Koskinen’s statement stunned Republican lawmakers at a morning House Oversight and Government Reform investigations subcommittee hearing chaired by Rep. Jim Jordan, who stated, “It has taken subpoenas to get people to talk.” Jordan called Koskinen’s statement “not accurate,” citing IRS prep sessions with employees who get interviewed by Congress to prove that the IRS is still talking to potential witnesses.
South Carolina Rep. Trey Gowdy grilled Koskinen on his remarks, asking him that if sexual harassment or racial discrimination occurred “you would wait until the IG investigated” before asking around about it.
“There is nothing about an ongoing IG investigation that would prevent you from doing your job,” Gowdy said. “There is nothing talismanic about an IG investigation…You could do a dual investigation.”
Koskinen claimed ignorance on several different fronts.
“I assume there’s a lot of ways that hard drives can get scratched,” Koskinen said, referring to Lois Lerner’s “scratched” hard drive, which he claimed he found out about this morning. Koskinen also said that he did not find out about Lerner’s computer crash in mid-February, when his underlings found out, but only learned about it months later.
“I haven’t talked to anybody about this. I haven’t asked anybody about it,” Koskinen said, referring to email backup tapes that might still exist, but which the IRS did not check after the computers of Lois Lerner and up to 20 other IRS employees central to the investigation allegedly crashed. “Nobody has any information about what was on those tapes or whether they were relevant…We have stopped asking people about it.”
Koskinen also said that he is “not aware” of any Department of Justice (DOJ) investigation into his slowness in handing over Lerner’s emails. DOJ recently pledged to look into Koskinen’s conduct.
Koskinen spoke about IRS understaffing, budgetary constraints, and wide-ranging IT problems, claiming that “2,000 hard drives have crashed” in his agency in the first six months of 2014. Koskinen called his agency’s email recovery system “arcane” and “archaic.” The commissioner, who previously led Bill Clinton’s President’s Council on Y2K Transition, said that the IRS needs to find a way “to get out of the late 20th century and into at least the first part of the 21st century.”
July 22, 2014 By Matthew Burke
In transcribed congressional testimony, Obama IRS Deputy Associate Chief Counsel Thomas Kane, who oversees the Obama IRS’s targeting scandal document production to Congress, said that he didn’t know whether backups existed of Lois Lerner’s and other IRS employees whose computer hard drives mysteriously and infamously crashed in the midst of the Obama IRS targeting scandal and congressional probe.
Investigator: “You stated at the time that document was produced to Congress, the document, the white paper in Exhibit 3[the June 13 memo], that it was accurate to the best of your knowledge. Is it still accurate?”
Kane: “There is an issue as to whether or not there is a ‑‑ that all of the backup recovery tapes were destroyed on the 6‑month retention schedule.”
Investigator: “So some of those backup tapes may still exist?”
Kane: “I don’t know whether they are or they aren’t, but it’s an issue that’s being looked at.”
In June, Vice President of Operations of Carbonite, the popular online computer backup company, Jim Flynne spoke to TPNN’s Tim Constantine on the “Capitol Hill Show,” explaining from a technological point of view, the Obama IRS’s claim that they “lost” Lois Lerner’s emails is not believable.
Do you believe the Obama IRS’s excuse that Lois Lerner’s emails are lost and unretrievable? Take the Official Tea Party Poll. Click HERE!
Meanwhile, The Obama IRS is also seeking help in destroying 3,200 additional hard drives, the Washingon Times Reports:
By ROBERT PEARJULY 22, 2014
WASHINGTON — Two federal appeals court panels issued conflicting rulings Tuesday on whether the government could subsidize health insurance premiums for people in three dozen states that use the federal insurance exchange. The decisions are the latest in a series of legal challenges to central components of President Obama’s health care law.
The United States Court of Appeals for the Fourth Circuit, in Richmond, upheld the subsidies, saying that a rule issued by the Internal Revenue Service was “a permissible exercise of the agency’s discretion.”
The ruling came within hours of a 2-to-1 ruling by a panel of the United States Court of Appeals for the District of Columbia Circuit, which said that the government could not subsidize insurance for people in states that use the federal exchange.
That decision could cut potentially off financial assistance for more than 4.5 million people who were found eligible for subsidized insurance in the federal exchange, or marketplace.
The law “does not authorize the Internal Revenue Service to provide tax credits for insurance purchased on federal exchanges,” said the ruling, by a three-judge panel in Washington. The law, it said, “plainly makes subsidies available only on exchanges established by states.”
Under this ruling, many people could see their share of premiums increase sharply, making insurance unaffordable for them.
The courts’ decisions are the not the last word, however, as other courts are weighing the same issue. And the Washington panel’s ruling could be reviewed by the full appeals court here.
The White House rejected the ruling of the court here and anticipated that the Justice Department will ask that the entire appeals court to review it. Mr. Obama’s aides noted that two district courts have thrown out similar lawsuits and therefore argued that judicial opinions have been mixed at worst. Moreover, they said the ruling Tuesday seemed to fly in the face of common sense.
“You don’t need a fancy legal degree to understand that Congress intended for every eligible American to have access to tax credits that would lower their health care costs, regardless of whether it was state officials or federal officials who were running the marketplace,” said Josh Earnest, the White House press secretary. “I think that is a pretty clear intent of the congressional law.”
Reacting to the ruling in Washington, a Justice Department spokeswoman, Emily Pierce, said: “We believe that this decision is incorrect, inconsistent with congressional intent, different from previous rulings and at odds with the goal of the law: to make health care affordable no matter where people live. The government will therefore immediately seek further review of the court’s decision.”
“In the meantime,” Ms. Pierce said, “to be clear, people getting premium tax credits should know that nothing has changed. Tax credits remain available.”
Continue reading the main story
The majority opinion in the case filed here, Halbig v. Burwell, was written by Judge Thomas B. Griffith, with a concurring opinion by Judge A. Raymond Randolph, a senior circuit judge.
Another member of that appeals court panel, Judge Harry T. Edwards, also a senior circuit judge, filed a dissenting opinion in which he described the lawsuit as an “attempt to gut” the health care law. The majority opinion, he said, “defies the will of Congress.”
Judge Edwards said that the Obama administration’s reading of the law, considered in “the broader context of the statute as a whole,” was “permissible and reasonable, and, therefore, entitled to deference.”
A similar approach was sounded later by the Fourth Circuit panel, which said, “We find that the applicable statutory language is ambiguous and subject to multiple interpretations.” The court said it would therefore give deference to the reading of the law by the Internal Revenue Service, which issued the rule allowing payment of subsidies for people in all states, regardless of whether the state had a federal or state exchange.
The decision by the appeals court here is important because the federal exchange serves states with about two-thirds of the nation’s population. In federal and state exchanges, people may qualify for subsidies if they have incomes of up to $45,960 for individuals and up to $94,200 for a family of four.
If it stands, the ruling by the District of Columbia court could undercut enforcement of the requirement for most Americans to have insurance. Without subsidies, many more consumers would go without insurance and could be exempted from the “individual mandate” because insurance would be unaffordable for them.
The ruling also could undermine the requirement for larger employers to offer health coverage to their employees. That requirement is enforced through penalties imposed on employers if any of their employees receive subsidies to buy insurance on an exchange.
The case is one of many legal challenges to the Affordable Care Act in the last few years. The Supreme Court upheld the law in 2012, but said the expansion of Medicaid was an option for states, not a requirement, and about half the states have declined to expand eligibility.
The administration suffered a defeat in a recent struggle over access to contraceptives. The Supreme Court ruled on June 30 that family-owned for-profit corporations like Hobby Lobby Stores were not required to provide coverage of birth control to their employees if the companies objected on religious grounds.
The health care law authorized subsidies specifically for insurance bought “through an exchange established by the state.”
Obama administration officials said that an exchange established by the federal government was, in effect, established by a state because the secretary of health and human services was standing “in the shoes” of states when she established exchanges.
When the health care law was adopted in 2010, Mr. Obama and Congressional Democrats assumed that states would set up their own exchanges. But many Republican governors and state legislators balked, and opposition to the law became a rallying cry for the party.
The lawsuit in Washington was filed by several people, supported by conservative and libertarian organizations, in states that use the federal exchange: Tennessee, Texas, Virginia and West Virginia. They objected to being required to buy insurance, even with subsidies to help defray the cost.
One of the plaintiffs, David Klemencic, who has a retail carpet store in Ellenboro, W.Va., said: “If I have to start paying out for health insurance, it will put me out of business. As Americans, we should be able to make our own decisions in matters like this.”
Similar lawsuits challenging subsidies under the Affordable Care Act are pending in other courts, which could reach different conclusions. In February, a federal district judge in Richmond, Va., upheld subsidies in the federal exchange. While plaintiffs’ interpretation of the law has “a certain common sense appeal,” the judge said, “there is no evidence in the legislative record” that Congress intended to make tax subsidies conditional on a state’s decision to create an exchange.
Stuart F. Delery, an assistant attorney general, told the appeals court here in March that Congress had intended for subsidies to be available nationwide to low- and moderate-income people, regardless of whether they obtained insurance on a federal or state exchange.
Subsidies, in the form of tax credits, are a crucial element of the Affordable Care Act. Without them, insurance would be unaffordable to millions of Americans. The Congressional Budget Office estimates that subsidies this year will average $4,400 for each person who receives a subsidy.
The plaintiffs said that Congress had confined the subsidies to state exchanges for a reason: It wanted to provide an incentive for states to establish and operate exchanges, rather than leaving the task to the federal government.
Obama administration officials said that argument was absurd. The overriding purpose of the Affordable Care Act, they said, was to ensure access to health care for nearly all Americans, wherever they live.
Of the eight million people who selected private health plans from October through mid-April, 5.4 million obtained coverage through the federal exchange, and most of them qualified for subsidies that reduce their premiums.
“… I wouldn’t bet the family farm on this coming out in a way that preserves Obamacare,” he says
By Joel Gehrke
President Obama’s old Harvard Law professor, Laurence Tribe, said that he “wouldn’t bet the family farm” on Obamacare’s surviving the legal challenges to an IRS rule about who is eligible for subsidies that are currently working their way through the federal courts.
“I don’t have a crystal ball,” Tribe told the Fiscal Times. “But I wouldn’t bet the family farm on this coming out in a way that preserves Obamacare.”
The law’s latest legal problem is that, as written, people who enroll in Obamacare through the federal exchange aren’t eligible for subsidies. The text of the law only provides subsidies for people enrolled through “an Exchange established by the State,” according to the text of the Affordable Care Act. Only 16 states decided to establish the exchanges.
The IRS issued a regulation expanding the pool of enrollees who qualify for the subsidies. Opponents of the law, such as the Cato Institute’s Michael Cannon and Jonathan Adler, argue that the IRS does not have the authority to make that change. (Halbig v. Burwell, one of the lawsuits making this argument, is currently pending before the D.C. Circuit Court; the loser will likely appeal the decision to the Supreme Court.)
“There are specific rules about when and how the IRS can deviate from the plain language of a statute,” Cannon explained to National Review Online, arguing that the subsidies regulation fails to comply with those rules.
The IRS can deviate from “absurd” laws, in theory, but the subsidies language is not absurd. “It might be stupid, but that’s not the test for absurdity,” Cannon says. Similarly, the IRS can deviate in the case of scrivener’s errors — typos, basically — but this is not a typo, Cannon says, because the language was written into repeated drafts of the law.
“They not only keep that language in there, but they even inserted it, this same phrase again, right before passage while the bill was in [Senate Majority Leader] Harry Reid’s office,” Cannon says. “So, it’s not a scrivener’s error, either.”
Finally, the IRS could fill in ambiguous gaps in a law. The problem for the IRS, though, is that the subsidies language is not ambiguous. Even Tribe acknowledged that the language is clear, according to the Fiscal Times.
“Yet in drafting the law, Tribe said the administration ‘assumed that state exchanges would be the norm and federal exchanges would be a marginal, fallback position’ — though it didn’t work out that way for a plethora of legal, administrative and political reasons,” the Fiscal Times writes.
Tribe suggested that the case will, like the individual mandate challenge before it, hinge on Chief Justice John Roberts’s decision. “He would be asking himself the hard question: ‘Is it so clear under existing law that it has to be construed in this literal and somewhat bizarre way . . . that subsidies or tax credits cannot be provided on the federal exchanges, or is it sufficiently ambiguous that it gives me the necessary legal wiggle room’ [to side with the administration once again?]” Tribe said.
Forbes contributor Jeffrey Dorman notes that a recent ruling in a case involving the Environmental Protection Agency could make it harder for Roberts to conclude that he has that wiggle room.
“The power of executing the laws necessarily includes both authority and responsibility to resolve some questions left open by Congress that arise during the law’s administration. But it does not include a power to revise clear statutory terms that turn out not to work in practice,” Justice Antonin Scalia wrote in an opinion that Roberts joined in full.
Cannon believes Roberts is unlikely to go through the legal gymnastics used when he upheld the individual mandate as an exercise of Congress’s taxing power, even though it was written into law as an unconstitutional penalty.
“That was a question of congressional power under the Constitution, and this is a question of IRS power under the ACA and Supreme Court precedents,” Cannon says. “The IRS has absolutely zero independent power to tax and borrow and spend. It can only do that which is delegated to it by Congress.”
And he has no patience with Tribe’s suggestion that it would be “bizarre” for Roberts to conclude that only state-based exchanges can receive subsidies.
“He’s obviously trying to coach the Supreme Court on how to rule for the government here,” Cannon counters. “He’s also either ignoring or not aware of the legislative history showing that Congress was considering all sorts of proposals that would withhold subsidies from states that didn’t establish exchanges or do other things.”
“It is clear that he has not researched the legislative history, because there is nothing bizarre about it,” Cannon says.
July 18, 2014 By Todd Cefaratti
A federal judge, on Thursday, declared that a lawsuit against the IRS, brought by several Tea Party groups, was allowed to proceed.
Judge Susan Dlott declined the government’s requests to dismiss the claims that the IRS had improperly targeted Tea Party and various conservative groups in a campaign of harassment that lasted for years. This will allow the lawsuit filed against the IRS to go forward and will allow for the Tea Party groups to uncover government documents that could not only lead to a bigger legal battle, but shine some light on the scandal that has shown the Obama administration to be an administration of political thugs.
“Plaintiff groups will be given the opportunity to establish with evidence that IRS officials inspected or disclosed the plaintiff groups’ return information for improper purposes,” Dlott wrote. “The court anticipates that this will be a difficult burden for plaintiff groups to meet.”
For years, the IRS operated as a cudgel to beat back political opposition. Lois Lerner, the disgraced former IRS official in charge of the nonprofit division of the IRS, has been at the center of the scandal as she has tried to dodge the political fallout from the revelations that for years, the IRS sought to diminish the efficacy of the Tea Party Movement by burdening many of them with long, drawn-out requests for a routine investigation into tax-exempt nonprofit designations.
The IRS also issued invasive questionnaires and requests for information about members. In these requests, the IRS asked for emails, Facebook postings, topics of conversations at meetings, membership rolls, a list of the kinds of reading materials being read by members and a variety of other truly invasive questions.
TheTeaParty.net, the nation’s largest national Tea Party organization of which I am the founder and Freedom Organizer, was subjected to these thuggish tactics for years and threatened to sue the IRS until we were later granted nonprofit status.
This lawsuit demonstrates a truly terrifying view of government as the IRS had claimed that the people of America had no right to answers from their government. Judge Dlott disagreed and issued a status conference date to ensure that the case does not linger any longer than is necessary.
This lawsuit is a tremendous victory for all Americans- those who proudly wave the Gadsden Flag and those who adore Obama and rally for big government should be equally delighted. We cannot abide a government that operates in secret and we cannot abide a government that uses a tax-collecting agency as a hammer with which to squash legitimate political dissent.
We, as a nation, must come together to condemn this brutish, thuggish behavior. Victimizing Americans for the sake of political expediency was wrong when Nixon did it and it’s wrong now.
This lawsuit is a step in the right direction and reason for all Americans to rejoice.
James Cole, deputy attorney general in the Department of Justice, testified Thursday that the DOJ heard about the destruction of IRS officials’ emails in the news, even though DOJ has formally been investigating the IRS for more than a year.
“I think we learned about it after that, from press accounts,” Cole told House Oversight and Government Reform subcommittee chairman Rep. Jim Jordan at a hearing Thursday on the DOJ’s response to the wave of computer crashes at the IRS that wiped out seven different employees’ hard drives. (RELATED: Meet The Seven IRS Employees Whose Computer Crashed). DOJ has allegedly been conducting a widely-mocked investigation into the IRS conservative targeting scandal for more than a year, and recently announced that a new investigation is underway into the IRS missing emails.
“So you actually read about it in the press and nobody in the IRS ever went to the Justice Department to give you a heads-up, knowing you were conducting the investigation that some evidence may have been destroyed?,” Republican Rep. Ron DeSantis ventured.
“Not before the 13th of June,” Cole replied.
Cole confirmed at the hearing that DOJ is now “looking into” the IRS commissioner’s delayed response in the IRS emails case.
President Obama previously said that he heard about the Department of Veterans Affairs deadly wait list scandal on the news. He also originally said that he heard about the IRS targeting scandal on the news “along with most of you.”
By Larry O’Connor
No one from True The Vote, the highest profile organization targeted by the IRS in the scandal involving improper scrutiny of conservative-leaning non-profits, has been interviewed by the FBI or investigators from the Department of Justice, according to the group’s President, Catherine Engelbrecht.
This stunning revelation comes just days after Attorney General Eric Holder rebuffed the suggestion that an independent investigation is needed into the growing scandal. Holder told ABC News this weekend that a special investigation was unnecessary because “career people” and FBI agents were “doing a good, professional job” investigating the matter.
When I raised Holder’s assertion to Engelbrecht Monday morning during an interview on WMAL radio in Washington, DC, I asked her what her involvement and experience has been with the FBI and the DOJ, considering Holder’s claim that they were doing a “good and professional job” investigating the IRS scandal.
“That would be exactly ‘no.’ Zero. at no time have they approached us. Only when they are investigating us. Only when they are being adversarial towards us do we ever hear anything from the Department of Justice. There has been no outreach to try and get to the bottom of the scandal at any time. “
There is no doubt that for any serious and thorough investigation into the inappropriate and potentially illegal tactics used by the IRS in refusing to grant conservative groups a 501(c)4 non-profit status because of their perceived political leanings, Engelbrecht’s group would be one of the first to be interviewed.
True The Vote has been embroiled in much of the testimony and investigation in the House Oversight Committee, including an episode where Lois Lerner fed tax information to that committee’s ranking Democrat, Elijah Cummings’ office. In April, Townhall’s Katie Pavlich reported on the e-mail exchange:
New IRS emails released by the House Oversight Committee show staff working for Democratic Ranking Member Elijah Cummings communicated with the IRS multiple times between 2012 and 2013 about voter fraud prevention group True the Vote. True the Vote was targeted by the IRS after applying for tax exempt status more than two years ago. Further, information shows the IRS and Cummings’ staff asked for nearly identical information from True the Vote President Catherine Engelbrecht about her organization, indicating coordination and improper sharing of confidential taxpayer information.
Chairman of the House Oversight Committee Darrell Issa, along with five Subcommittee Chairmen are demanding Cummings provide an explanation for the staff inquiries to the IRS about True the Vote and for his denial that his staff ever contacted the IRS about the group.
“Although you have previously denied that your staff made inquiries to the IRS about conservative organization True the Vote that may have led to additional agency scrutiny, communication records between your staff and IRS officials – which you did not disclose to Majority Members or staff – indicates otherwise,” the letter to Cummings states. “As the Committee is scheduled to consider a resolution holding Ms. Lerner, a participant in responding to your communications that you failed to disclose, in contempt of Congress, you have an obligation to fully explain your staff’s undisclosed contacts with the IRS.
The revelation from Engelbrecht that her organization has not been interviewed or contacted by the DOJ at all in the 15 months since the IRS scandal first broke calls into question just how seriously Attorney General Holder is taking the investigation and will surely add to the growing number of voices calling for an independent investigation into the scandal that now includes missing e-mails, broken hard drives and a central figure pleading the 5th amendment.