by Tom Fitton –
If there is a case study which perhaps best describes why Judicial Watch is so important and how we are different from any other organization, it is the record of success we have achieved in exposing the Obama Internal Revenue Service (IRS) scandal, in which that powerful federal agency was used to target and harass conservative organizations.
And that success continued this week in federal court, before U.S. District Court Judge Emmet Sullivan, who held a hearing about the supposedly missing emails of Lois Lerner and other IRS officials, which were the subject of longstanding Judicial Watch Freedom of Information Act (FOIA) requests and a lawsuit (Judicial Watch v. IRS (No. 1:13-cv-1559)).
The emails Judicial Watch has sought since May 2013 cover portions of the same period for which the IRS on June 13, 2014, notified the House Committee on Ways and Means were lost or destroyed. Yet the IRS failed to notify either Judicial Watch or the court concerning the “lost” emails.
You’ll be pleased to know that Judge Sullivan, like Judicial Watch, demanded answers and accountability. The lawyer for the IRS, Geoffrey Klimas, suggested that it would be “appropriate” to wait until its own investigation by the Treasury Inspector General for Tax Administration (TIGTA) concluded before Judicial Watch or the court get any answers through discovery. Judge Sullivan was skeptical (you can review the hearing transcript here):
THE COURT: More appropriate for whom, though, for the department or the public? I mean, this is an action filed by an organization that seeks documents under the theory that the public likes to know what its government is doing, so appropriate for whom? How would delaying discovery assist this plaintiff [Judicial Watch] and the public in learning what happened here?
MR. KLIMAS: I would submit that letting the Inspector General conclude his investigation serves the public interest. The Inspector General is —
THE COURT: First of all, we don’t know who this Inspector General is; secondly, we don’t know whether his or her report is going to be public, right, right?
MR. KLIMAS: That’s correct.
THE COURT: So what’s — so let’s just stop there. Whose interest does that benefit, other than the IRS and not the public?
Judge Sullivan was not persuaded and demanded answers, under oath, from the IRS within 30 days. Here’s a squib from his court order, which you can read in its entirety here: “For the reasons stated by the Court on the record during the status hearing on July 10, 2014, Defendant IRS is hereby ORDERED to file a sworn Declaration, by an official with the authority to speak under oath for the Agency, by no later than August 11, 2014.”
As reported by the The National Law Journal, the content of that declaration involves the “Lois Lerner email issue,” with the judge saying he would “leave that category broad.” Judge Sullivan also said the declaration “should also include how the government could recover information contained in the lost emails.”
Judge Sullivan appointed Magistrate Judge John M. Facciola to manage and assist in discussions between Judicial Watch and the IRS about how to obtain any missing records from sources. Magistrate Facciola is an expert in e-discovery.
Judge Sullivan also authorized Judicial Watch to submit a request for limited discovery into the missing IRS records by September 24.
Folks, this is a huge victory for Judicial Watch and its members and supporters. This extraordinary court ruling is a key step in unraveling the Obama IRS’s ongoing cover-up of its abuses against critics of this administration.
Thanks to our lawsuit, the IRS will be forced provide answers under oath to a federal judge regarding the scandal and cover-up. It is our hope that we can finally get some answers regarding these so-called “lost” emails, which could provide critical information about the Obama IRS effort to suppress conservatives and Tea Party organizations across the land.
Were these emails retained? Were they “lost” forever when Lerner’s hard drive “crashed”? These are the questions at the center of JW’s investigation. And according to new records uncovered by Judicial Watch, we’re not the only investigative agency who asked for them.
On the day of our court hearing, JW released new IRS documents including an email from the TIGTA seeking a missing May 2010 IRS internal email ordering the targeting of Tea Party applications. The TIGTA email also questioned the IRS “retention and backup policy regarding emails.”
In the January 24, 2013, email from Troy Paterson of the TIGTA office to Holly Paz, the former director of the Office of Rulings and Agreements, Paterson wrote:
During a recent briefing, I mentioned that we do not have the original e-mail from May 2010 stating that “Tea Party” applications should be forwarded to a specific group for additional review. After thinking it through, I was wondering about the IRS’s retention or backup policy regarding e-mails. Do you know who I could contact to find out if this e-mail may have been retained?
On January 31, 2013, Paz responded to Paterson apologizing for apparently failing to meet with the TIGTA official and diverting his request for the missing May 2010 email to IRS legal counsel:
I’m sorry we won’t get to see you today. We have reached out to determine the appropriate contact regarding your question below and have been told that, if this data request is part of e-Discovery, the coordination needs to go through Chief Counsel.
What followed TIGTA’s request was a frenzied email exchange between Lerner and Paz that revealed three interesting facts (you can read the emails here): First, Lerner specifically referenced the email sought by TIGTA directing the path of “Tea Party applications,” suggesting it in fact did exist (a fact she later denied to Paterson). Second, the IRS staff was not cooperating with the inspector general. And, third, IRS staff was “freaked out” by the exploding scandal.
This all started in May 2013, when Judicial Watch submitted four separate Freedom of Information Act (FOIA) requests for IRS communications concerning the review process for organizations seeking tax exempt status.
One of the FOIA requests specifically sought Lerner’s communications with other IRS employees and with any government or private entity outside the IRS regarding the review and approval process for 501(c)(4) applicants from January 1, 2010, to the present. A second request sought communications for the same timeframe between the IRS and members of Congress and other government agencies, as well as any office of the Executive Branch.
After the IRS failed to provide the information, Judicial Watch filed a FOIA lawsuit on October 9, 2013. And it was this FOIA lawsuit that ultimately led to the discovery of the “lost” emails disclosed to Congress.
I don’t think it is any stretch to say that our discoveries have broken the IRS scandal wide open, while also helping to achieve a measure of accountability for Lerner, who was held in contempt by Congress and referred to the Justice Department for potential criminal prosecution by the House Ways and Means Committee.
Judicial Watch has forced the release of government records that even Congress could not acquire, including the bombshell discovery that Lerner communicated with the Department of Justice seeking guidance on criminally prosecuting conservative organizations that allegedly “lied” on tax-exempt applications.
JW also uncovered records proving that Lerner unlawfully provided confidential tax information to the Federal Election Commission and forced the release of IRS documents showing, contrary to what President Obama has said, the delay of Tea Party applications was directed out of the agency’s headquarters in Washington, DC. (The documents also show extensive pressure on the IRS by Senator Carl Levin (D-MI) to shut down conservative-leaning tax-exempt organizations.)
Of course, our efforts to uncover the truth about the Lerner IRS witch-hunt would be a whole lot easier if the Obama administration would simply be forthcoming. But this is clearly too much to ask, which is why a federal judge hauled the IRS into court and ordered them to talk.
And to further confirm that Ms. Lerner and the IRS engaged in a cover-up, Congressman Darrell Issa’s (R-CA) investigative committee released the following information on July 9:
The House Oversight and Government Reform Committee today released new e-mails at a hearing with IRS Commissioner John Koskinen showing former Internal Revenue Service (IRS) official Lois Lerner leading an IRS effort to hide information from Congressional inquiries.
From the April 9, 2013, email exchange among Lerner, an IRS technology employee (Maria Hooke), and the agency’s Director for Exempt Organizations Exam Unit Manager Nanette Downing who led audits:
I had a question today about OCS [Microsoft Office Communications Server]. I was cautioning folks about email and how we have several occasions where Congress has asked for emails and there has been an electronic search for responsive emails – so we need to be cautious about what we say in emails. Someone asked if OCS conversations were also searchable – I don’t know, but told them I would get back to them. Do you know?
Lerner’s April 2013 e-mail exchanges came just twelve days after the IRS Inspector General shared a draft copy of its targeting audit with the IRS that Lerner would leak at a bar association speech only weeks before the scandal became public.
In e-mails withheld from the Committee until only last week, Lerner was apparently concerned that IRS conversations taking place within the agency’s instant messenger program could end up in the hands of Congress along with requested e-mails. An IRS technology employees responded that “OCS messages are not set to automatically save” but cautioned that “parties involved in an OCS conversation can copy and save the contents of the conversation to an email or file.” Lerner responded, “Perfect.”
When Rep. Jim Jordan, R-Ohio, raised the e-mail to Commissioner Koskinen’s attention, Koskinen said he had never seen the e-mail and was unfamiliar with the OCS communication system.
To be clear, Judicial Watch has yet to receive any texts from this “OCS” system as it should have in our FOIA lawsuit. You can bet we’ll be raising this issue in federal court as well.
It’s long past time for these games to end. Stay tuned. There is little doubt additional discoveries regarding this scandal and its cover-up are forthcoming. And there is no doubt JW will behind the effort to uncover them. At this point, our FOIA lawsuit seems the best vehicle to get to the bottom of this IRS scandal.
Border Security Now “Existential” Threat to U.S.
Says Marine General, Combat Veteran
How do you know when your border security policy has reached a “Code Red?”
When a decorated and battle-tested Marine General, who led troops in an Iraq combat zone for years, says the situation on the border has become an “existential threat” to the United States. And then he asks for help.
As reported by DefenseOne.com:
A top United States general in charge of protecting the southern border says he’s been unable to combat the steady flow of illegal drugs, weapons and people from Central America, and is looking to Congress for urgent help.
Marine Corps Gen. John Kelly, commander of U.S. Southern Command, has asked Congress this year for more money, drones and ships for his mission – a request unlikely to be met. Since October, an influx of nearly 100,000 migrants has made the dangerous journey north from Latin America to the United States border. Most are children, and three-quarters of the unaccompanied minors have traveled thousands of miles from El Salvador, Guatemala and Honduras.
“In comparison to other global threats, the near collapse of societies in the hemisphere with the associated drug and [undocumented immigrant] flow are frequently viewed to be of low importance,” Kelly told Defense One. “Many argue these threats are not existential and do not challenge our national security. I disagree.”
Last year, General Kelly said his task force was flat-out unable to respond to 75% of illicit activity occurring on the border. “I simply sit and watch it go by,” said General Kelly, who once led Marines who reduced terrorist activity in Baghdad by 80% over a six month period. What’s happening on the border today, said General Kelly, is a “crime-terror convergence,” a gaping hole in our security that creates opportunities for drug cartels and terrorists and leaves U.S. citizens vulnerable.
This warning is not coming from a man prone to exaggerating threats. This is coming from a man who was once asked by a Los Angeles Times reporter if he ever contemplated defeat in the face of superior forces in Iraq, and replied (as detailed in a speech he gave in 2007):
My response to the reporter was something like: “hell these are Marines. Men like them held Guadalcanal and took Iwo Jima, Baghdad ain’t [expletive].” This same sentiment could, and does, apply to any American serviceman or woman. We who serve, who are sent to fight wars and have nothing whatsoever to do with starting them, have never known defeat on the battlefield. When we have lost, we lost at home, and others declared defeat – not us.
Baghdad “aint [expletive],” General Kelly said. But our border represents an “existential threat.” Could it be any clearer how dangerous the situation has become under the current Commander-in-Chief? That we are, without a doubt, “losing at home?”
President Obama has correctly labeled the situation on the border a humanitarian crisis. It is indeed. As our own Corruption Chronicles blogger pointed out in her most recent installment, “The hordes of illegal immigrant minors entering the U.S. are bringing serious diseases-including swine flu, dengue fever, Ebola virus and tuberculosis-that present a danger to the American public as well as the Border Patrol agents forced to care for the kids…”
But it is much more than a humanitarian concern. This is about crime, terrorism, and disease all wrapped up in one “perfect storm” that appears to be the greatest threat facing our homeland at the moment, if you believe the combat Marine in charge of fixing the problem. (We are devoting significant resources to the ongoing border crisis, so watch future Weekly Update emails and our website at www.judicialwatch.org for news.)
And the president’s response to this perfect storm is telling. President Obama has requested $3.7 billion in supplemental funding to address the humanitarian issues, with only 5% of the budget allocated to boots on the ground. General Kelly’s request, meanwhile, is “unlikely to be met,” according to Defense One.
Senator Ted Cruz issued a statement on the president’s funding request that seems more accurate with each passing moment – that it is an admission that the influx of illegal alien youths will continue and that the president has “no intention of solving this problem.”
This, of course, raises the question: Why would the president intentionally allow the border crisis to spiral out of control even while admitting the situation has reached a crisis level?
Judicial Watch, AEF File Brief Supporting Arizona,
Kansas Efforts to Stop Voter Fraud
Of course one of the many negative down-stream consequences of illegal aliens flooding across the border is the increased possibility of voter fraud. Obama and his leftist allies are committed to thwarting any effort by states to protect the integrity of the voting process that would prevent illegal aliens and other ineligible individuals from voting.
That’s where we come in. As you know, Judicial Watch has launched a nationwide effort to support election integrity. And that effort continued this week, as we once again joined forces with the Allied Educational Foundation (AEF) to file an amicus curiae brief with the United States Court of Appeals for the Tenth Circuit in support of Arizona’s and Kansas’ efforts to add proof of citizenship requirements to a federal voter registration form.
And who is behind this legal challenge to the common-sense effort to make sure all votes cast are legitimate? A leftist radical special interest group? Well, yes and no. It’s the Federal Election Assistance Commission (EAC), run by leftists in the Obama administration, which is appealing a lower court order requiring the EAC to allow the states to add the proof of citizenship requirements.
Before getting to the legal arguments we articulate in our brief, I just want to take a moment to put this legal battle in context (with a little help from the Center for Immigration Studies and its excellent report Allowing Non-Citizens to Vote in the United States? Why Not.).
As CIS points out. Every single state in the United States legally bars non-citizens from voting in national or state elections. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, signed into law by President Clinton, made it a crime for any non-citizen to vote in a federal election.
This is a fact so basic and so well-documented, says CIS, that 94% of fourth graders tested on the question of whether or not non-citizens could vote got the question correct.
So why are leftists inside the Obama administration in the bottom 6% of a fourth grade class? It’s certainly not because they don’t understand the law. They understand it perfectly well. It’s because they don’t agree with the law, want to change it, and know they would not have a snowball’s chance in you-know-where driving that kind of legislation through Congress. So they do what they always do. Ignore the law, go to court, and hope judges allow them to get away with the lawlessness.
By the way, you should know that the campaign to allow non-citizens to vote is a national effort that has already borne fruit. Per CIS: “there are several municipalities in the United States that currently allow non-citizens to vote in local elections. Moreover, legislation to allow non-citizens to vote has been introduced in a number of states and localities including Washington, D.C., San Francisco, and New York City.”
Kansas and Arizona, however, were not willing to “play ball” with leftists who boldly court non-citizen voting. And that’s why they (and we) are active in court.
In August 2013, the states of Kansas and Arizona filed a complaint against the EAC asking the U.S. District Court for the District of Kansas to force the agency to require proof of citizenship in the state-specific instructions on the National Mail Voter Registration Form (the Federal Form).
And they won – albeit temporarily. On March 19, 2014, the District Court ruled that the EAC must change the federal registration form to allow the states to require documentary proof. The EAC, along with the other interveners, appealed the decision to the U.S. Court of Appeals for the Tenth Circuit, and on May 19, the Tenth Circuit stayed the District Court’s order.
In our amicus brief, Judicial Watch and AEF argue that if granted, the appeal “would have a chilling effect on voter confidence in the integrity of elections in Kansas and Arizona, as well as nationwide.” The amicus contends, “The U.S. Election Assistance Commission – apparently uninterested in federal law enforcement – now seeks to prevent states from enforcing their own lawfully enacted statutes designed to ensure that voter-qualification laws are followed.”
Here are our legal arguments per the amicus brief:
• The NVRA Protects Election Integrity, Which is Necessary for the Nation to Have Confidence in the Legitimacy of its Elected Leaders
The NVRA is not a statute solely focused on ballot access, as the EAC wrongly implies throughout its decision. Rather, the NVRA reflects a compromise designed both to increase lawful voter registration and to increase the integrity of elections by ensuring that voter rolls are accurate and contain only eligible voters … It is necessary for states to restore the American public’s confidence that elections are honest by enforcing election integrity laws … A poll from August of 2013 reported that only 39% of Americans believe elections are fair.
• The EAC’s Decision Ignores the Election Integrity Language and Purpose of the NVRA
The EAC barely considers the NVRA’s emphasis on election integrity and voter confidence, using the words “integrity” and “confidence” only once each in its entire 46-page opinion … By ignoring the other purposes of the statute, the EAC adopts a lopsided approach that treats disenfranchisement by fraud and the loss of public confidence in elections as irrelevant.
• Even Low Levels of Noncitizen Registration and Voting Disenfranchise U.S. Voters and Can Alter the Outcome of Elections
According to a report from U.S. Census Bureau, in 2012 there were approximately 22 million noncitizens (both lawfully and unlawfully present) in the U.S. out of a total population of 311 million. This means that roughly 6 percent of the U.S. population lacks citizenship – or about 1 in 17 people. It is well established, moreover, that Arizona has one of the highest non-citizen populations in the United States, and Kansas, in part due to particular industries in the south-western part of the state, also has a sizable noncitizen population. In light of these facts, for the EAC to deem these states’ precautions as “unnecessary” strains the meaning of the word.
Once again, states are being forced to fight the Obama administration in order to insure the integrity of the electoral process. Supreme Court, in its Arizona v. Inter Tribal Council of Arizona decision, has already ruled that states are free to petition the EAC to add the proof of citizenship requirement. But, as usual, the Obama administration would bully states from protecting election integrity rather than abide by the law. Given the current border crisis, proof of citizenship to vote is an issue that is more relevant than ever.
By way of background, The Allied Educational Foundation is a charitable and educational foundation dedicated to improving the quality of life through education. In furtherance of that goal, the Foundation has engaged in a number of projects which include, but are not limited to, educational and health conferences domestically and abroad. AEF has frequently partnered with Judicial Watch to fight government and judicial corruption.
JW and AEF have always been on the right side of the law when filing these briefs, and many times we’ve been on the right side of a court decision. (See our joint amicus curiae brief over President Obama’s National Labor Relations Board appointments recently ruled unconstitutional as one example.) Let’s hope for the sake of the integrity of our electoral process, we find success once again.
Tom Fitton – President