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Policy: Law

IRS scandal needs a special prosecutor

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Opinion,Editorial,IRS,Justice Department,Law,Washington Examiner,Magazine,Lois Lerner

We have heard the phrase “phony scandals” applied this summer to several important developments in President Obama's administration. Obama would now love to place in this category even the IRS scandal, in which Lois Lerner's division of that agency targeted and harassed conservative non-profit groups. Last summer, Obama had called that scandal “inexcusable” and forced the head of the IRS to resign. How times change.

This scandal, though without the fatal consequences that attended the mismanagement of the Veterans Administration, is nevertheless egregious and telling about the nature of the executive over which Obama presides. It escalated significantly last month as evidence of a bureaucratic cover-up mounted. It bears watching, and it deserves a truly independent investigation.

We noted last week that the government might have concealed from the courts a backup system from which Lerner's missing emails might be retrieved. But this is just one of many developments.

For one thing, an apparent conflict of interest was discovered in the investigation. A former co-worker of Lerner, attorney Andrew Strelka, had been representing the IRS against one of the targeted groups from his new position at the Department of Justice. Strelka was far too close to this case to have undertaken this task, for when serving under Lerner at the IRS, he had received emails about the targeting as it happened. One manager told him to “let me know” if he “received or do receive a case in the future involving an exemption for an organization having to do with Tea Party.”

According to DOJ guidelines, “A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness.” Strelka was abruptly removed from the case last month, and the Justice Department's has since noted that he is no longer working there.

Most alarming, though, was the most recent revelation, which came in an affidavit filed as part of Judicial Watch's Freedom of Information lawsuit against the agency. Lerner's government-issued Blackberry was wiped and scrapped in June 2012 – after Congress had begun investigating the scandal. By the time the Blackberry was destroyed, House Oversight investigators had actually interviewed Lerner herself on the topic.

This is important because Lerner's emails continue to evade investigators. Her hard drive had supposedly crashed in 2011 so that many of her emails from a critical period were believed to be lost. That Blackberry may have represented the last opportunity to gain access to them. Its destruction, conveniently times for a principal target of the probe, strongly suggests mens rea. If bureaucrats did not engage in defensive document-destruction, then there are an awful lot of eye-popping coincidences in this scandal.

These new developments all point to the same conclusion: The case needs a special prosecutor. Both the IRS itself and the Department of Justice have been compromised in this investigation. To keep this matter “in house” is to let bureaucrats continue giving evasive answers and to cover their tracks. For a truly independent investigation, someone from the outside must take it up. Only then will Americans have a chance of getting the truth and of seeing the Augean stable of the IRS cleansed for the good of the nation.

Editor's note: Judicial Watch is representing the Washington Examiner in the newspaper's federal lawsuit seeking access to Consumer Financial Protection Bureau records under FOIA.

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