08.07.2013 0

Will Obama invoke executive privilege on the IRS documents?

Issa 600By Robert Romano

Things are getting very, very interesting in the Internal Revenue Service (IRS) scandal targeting tea party and other 501(c)(4) organizations, with the House Committee on Oversight leading the investigation issuing a wide-reaching subpoena for executive branch documents.

Included in the request made by committee chairman Rep. Darrell Issa (R-Ind.) to Treasury Secretary Jack Lew are all of the communications of IRS officials at the center of the scandal, Lois Lerner and Holly Paz, from 2009 to present.

Issa also wants all communications to and from agency chief counsel William Wilkins, as well as those to and from chief of staff for former IRS Commissioner Douglas Shulman, Jonathan Davis, between Feb. 1, 2010 and present. Both were repeated visitors to the White House, and have been implicated in the scandal by other IRS employees.

Even more broadly, the committee is asking Lew to produce all communications between Wilkins’ office, the Department of Treasury, and the Executive Office of the President pertaining to tax-exempt organizations or applicants for tax-exempt status. And all documents pertaining to the same at Treasury.

Will Lew — and in the process Obama — claim executive privilege over the documents?

By Issa issuing the subpoena to Lew, the Treasury Secretary is now compelled under 2 U.S.C.192 to furnish the documents or else risk being found guilty of a “misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.”

Additionally pursuant to 2 U.S.C. 194, “Whenever a witness summoned… fails to produce any books, papers, records, or documents, as required… it shall be the duty of the… Speaker of the House… to certify, and he shall so certify, the statement of facts aforesaid under the seal of the … House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.”

So, if Lew fails to produce the documents, a court may put him jail. Then, there is also the civil route, wherein a federal court could compel furnishing of the relevant papers. As noted in a 2012 Congressional Research Service report on the matter, “Congress may rely on the judicial branch to enforce a congressional subpoena. Under this procedure, Congress may seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena.”

In that sense executive privilege may be a shield, but not an impenetrable one.

A broad claim of executive privilege by Lew in the IRS matter would mirror that of Attorney General Eric Holder in the Fast and Furious scandal over documents that originated quite low in the Justice Department. Holder’s claim in that case was unprecedented.

Executive privilege is only supposed to extend to the President’s top advisors — not low-level officials in the departments and agencies. It has yet to be tested by the courts. Then there is the problem for the White House that claiming it in the IRS scandal would imply that the implicated documents were a part of presidential deliberations with advisors, further insinuating that Obama himself had a hand in the scandal.

Certainly, that would begin to become the public’s perception should the privilege be invoked.

On the other hand, if the privilege is not invoked, there may be no other way to prevent the documents’ public disclosure. And so far, it is clear as day that the IRS does not want to disclose these documents.

According to Issa, “IRS originally identified over 64 million pages of responsive documents and has revised that number down to 660,000 responsive documents, but has produced to the Committee only about 12,000 pages. Approximately 2,500 pages are fully redacted and a significant portion of the remaining pages are duplicative.”

If this is such a “phony” scandal, what has the agency got to hide?

The Obama Administration has not produced documents that might contradict the allegations against it — that it was targeting the tea party and other non-profits for political reasons — leading invariably to the conclusion that there is substance to the charges. That this was a political operation from start to finish, using the power of the state to achieve electoral advantage. A witch hunt.

Now, the only way the White House might be able to protect itself from the investigation may be to claim executive privilege once again to prevent or at least delay any more facts from coming out that implicate Obama.

But if they do go that route, Secretary Lew may wind up becoming a sacrificial lamb compelled to serve prison time to keep the White House’s darkest secret under wraps. And even then, a federal court might compel the administration to turn over the documents anyway.

As the Supreme Court reminded the nation in its 1974 decision, U.S. v. Nixon, “Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”

Meaning, to paraphrase the Bard, one way or another, the truth will out.

Robert Romano is the Senior Editor of Americans for Limited Government.

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