Justice Department overreach, and a rudderless IRS
1. Who called Fox News reporter a “co-conspirator”?
On the Sunday before last, the Washington Post broke a story providing details of the Obama Justice Department’s investigation into how Fox News reporter James Rosen obtained classified information about American intelligence gathering in North Korea. Coming on the heels of the news that the Justice Department had secretly conducted a massive sweep of the phone records of the Associated Press as part of another leak investigation, the Post’s scoop was big news and ignited complaints from the press and others that the Obama administration was engaged in an unprecedented dragnet that would chill basic reporting.
For many, including me, the most disturbing aspect of the Post’s story was that in an affidavit filed seeking a search warrant for the Fox reporter Rosen’s email records, the Justice Department told a federal judge that “there is probable cause to believe that the reporter has committed or is committing a violation of section 793(d) as an aider or abettor and/or co-conspirator.” In other words, the government was saying that Rosen’s act of seeking the classified information the way journalists do every day (there are no allegations that he bribed someone for it or stole it) made him guilty of a crime because he was aiding or abetting or conspiring in the leak.
That characterization, which presumably would generate multiple life sentences for Bob Woodward, was unprecedented and seemed, even to many Obama supporters, over the top.
But in a speech last Thursday outlining his administration’s anti-terror and national security policy going forward, President Obama said, “I am troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable. Journalists should not be at legal risk for doing their jobs.” The president then promised that Attorney General Eric Holder would review Justice Department guidelines on dealing with the press in leak investigations.
So, was the president walking back his administration’s tough press leaks policy of calling journalists criminals? Maybe. But I have another suspicion.
The government’s affidavit was signed only by an FBI Washington field agent, Reginald Reyes. NBC News reported last week that Holder “signed off” on seeking the search warrant. But that doesn’t clearly answer the question of who signed off on what Reyes’s affidavit actually said, including the language branding reporter Rosen a criminal. Holder has often seemed over his head as attorney general, but could he possibly be that clueless?
Perhaps Reyes and his supervisors and maybe the Justice Department or FBI lawyer who drafted the affidavit went too far on their own, and there were no mechanisms in place to vet the language used in such a sensitive case.
I may be wrong; perhaps FBI director Robert Mueller, Holder or even the president signed off on this escalated language. But I’d sure like to see a story pinning down how that unprecedented language ended up in the affidavit. Did Holder actually read it?
My hunch is that this is less of a story about the president or even Holder stepping up a war on the press and more a new chapter in a larger narrative that has been playing out in multiple corners of the administration lately: The president and his top people are incompetent managers, aloof from the details of governing – so much so that neither has made sure to have competent enough deputies in place so that in the rare and always-significant instances when subpoenas or search warrants are issued for a reporter’s records the sudden appearance of this kind of language would be flagged.
2. Why no oversight of the IRS?
Speaking of Obama administration management lapses, I have written multiple times in this space suggesting that the press needed to pay attention to management weakness – in fact, sheer indolence – at the division of the Internal Revenue Service that handles applications for tax exempt status. This includes the agency’s failure to change long-outdated rules used to deny tax exempt status to non-profit news gathering institutions, as well as its failure to issue regulations mandated three years ago with the passage of Obamacare that would limit non-profit hospitals’ abusive bill collection practices.
However, the most prominent lapse of all – though still never reported on until the scandal erupted three weeks ago – has been the agency’s failure to act on the obvious abuse of the 501 (c) 4 section of the IRS code that allows plainly political organizations such as Karl Rove’s Grassroots GPS and the Obama camp’s Organizing For America (which has since become Organization for Action) to keep donors secret because they claim to be “social welfare organizations.” When I wrote about that last year, I suggested reporters should demand to know why these organizations’ applications have been gathering dust for years awaiting a formal decision, during which time they were allowed to collect and spend millions while keeping donors secret.
For me, the story of how these heavy-hitters’ fake 501 (c) 4’s were allowed to prosper with secret money while the IRS kept their applications in a drawer is as important as what seems to be the obviously unfair plan by some mentally challenged bureaucrats in Cincinnati to single out the applications of much smaller 501 (c) 4’s by using key words such as “Tea Party” or “patriot.”
Sure, the president or his Treasury secretary – in whose Cabinet department the IRS presides – is not supposed to interfere politically in the IRS. But that doesn’t mean they can’t or shouldn’t concern themselves with whether the agency is doing its basic job. Both men had to know for years that the tax exemption application process was broken, because highly-publicized organizations lavishly funding both their side and the other side were benefitting from the breakdown of the process. So, why didn’t anyone at the White House or Treasury simply ask what’s taking so long – or even demand that the IRS issue clear guidelines or regulations defining the limits of the political activity a “social welfare” organization can engage in and then make decisions accordingly?
Note to reporters thinking about undertaking this project: Be sure to ask former Treasury Secretary Timothy Geithner about all of this. This happened on his watch, yet I haven’t seen his name mentioned in a single story about the IRS scandal.
The IRS is responsible for the most important, far reaching consumer service performed by our national government. Yet its basic customer service (including an incomprehensible website) is as lousy as its policies are inscrutable. No mayor could be reelected who ran his sanitation department the way Barack Obama – aided by Geithner and now Jack Lew – runs the IRS. And, as we now know with the multiple failures of the division responsible for tax exempt applications, IRS incompetence is more than a matter of bad customer service; it affects all kinds of areas from abusive hospital billing to the integrity of our elections.
Sure, the Treasury secretary, not to mention the president, have responsibilities far heavier than worrying about the IRS. It’s also true that one of the “reforms” following revelations during the Watergate investigation that the Nixon administration had ordered IRS audits of its political enemies required that everyone at the agency except for the director and the general counsel would be civil servants and not political appointees. This means they can’t be fired for refusing to do the White House’s bidding, which is good. It also means that without going through a long, bureaucratic review process, they can’t be fired for incompetence or even misconduct by a Treasury secretary or a president who bothers to pay attention to their failures. That’s not good.
All of which suggests an important story hiding in plain site now that so many reporters are focused on the IRS. Why has it been allowed to be treated, as I wrote a few weeks ago, as “an inscrutable, unaccountable building rather than a group of public servants who work for us”?
And what would it take to fix it? Were the Watergate reforms – perhaps like other civil service safeguards or job security protections embedded in public employee union contracts – too much of a good thing, resulting in unaccountable bureaucrats?
Have these protections allowed our president and his appointees to ignore the basic management function of government because they have the excuse that they can’t control the bureaucrats? What, in fact, would it have taken to fire Lois Lerner – the hapless head of the IRS division overseeing tax exempt organizations – when it should have been obvious to any president or Treasury secretary well before she became famous for taking the Fifth that she was running an office that was not functioning?
Could a president whose style is more Chris Christie than law school professor have pushed over those civil service barriers the way we should want him to? And what will it now take to fire the idiots in Cincinnati who chose those “key words” to single out local conservative political groups?
It’s a story more important than just how to make the IRS work better, though that’s pretty important. It’s about how to restore confidence in government by making sure the people who serve us get the basic things right.
PHOTO: U.S. Attorney General Eric Holder testifies before a House Judiciary Committee hearing on “Oversight of the United States Department of Justice” on Capitol Hill in Washington May 15, 2013. REUTERS/Yuri Gripas