06.30.2014 2

House subpoenas on IRS emails expand to White House, Treasury, Justice, and FEC

IRSBy Robert Romano

On June 27, House Ways and Means Committee Chairman Rep. Dave Camp (R-Mich.) and Oversight Subcommittee Chairman Rep. Charles Boustany (R-La.) expanded its search for the missing Internal Revenue Service (IRS) emails relevant to the targeting of the tea party and other 501(c)(4) organizations.

To that end, Camp and Boustany are subpoenaing the missing IRS emails to other federal offices, including the White House.

In a joint statement to two declared, “We still can’t get straight answers from the IRS or this Administration about the circumstances of the destroyed IRS emails.  And, we now know that the IRS, Treasury and White House knew that years’ worth of Lerner emails conveniently were destroyed, yet kept it secret from Congress. This Administration needs to live up to the transparency and openness it promised, and give this Committee all the documents it needs to complete its investigation.”

Americans for Limited Government President Nathan Mehrens praised the move, “We are pleased that the House Ways and Means Committee is stepping up its game, and searching for the missing Lerner and other IRS emails on the servers of other federal departments, agencies and offices, including the White House, Department of Justice, Department of Treasury, the Federal Election Commission, and others.”

He added, “Unless there was a massive cover up, the missing emails should still be on those servers.”

But, Mehrens warned, the administration may not be forthcoming in adhering to these requests. “When the administration again stonewalls these requests, Chairman Camp needs to be prepared to enforce these subpoenas in federal court,” he said.

On the issue of taking the administration to federal court, last week, House Speaker Rep. John Boehner (R-Ohio) issued a memorandum to House members stating his intention to bring legislation to the floor, presumably H.Res.442, that will take the White House to court over delaying implementation of Obamacare’s existing plans prohibition and employer mandate, granting prosecutorial amnesty for illegal immigrants who came here as children, and waiving work requirements under the Social Security Act.

In response, National Review’s Andrew McCarthy has raised serious, legitimate questions about the House’s standing to raise these issues in court. Certainly a novel idea, and one struggles to find an instance this particular type of litigation where the legislative body itself take the executive branch to court.

Yet, on the issue of the IRS and administration stonewalling the House committee subpoenas on IRS records, destroying evidence, they would have a much better case, particularly since a) there is far less question the House would have standing to have its own subpoenas enforced and b) the Supreme Court has enforced Congressional subpoenas before.

For example, in Eastland v. U.S. Servicemen’s Fund (1975), the Supreme Court enforced a Senate subcommittee subpoena. That case was initiated by the organization against Sen. James Eastland (D-Miss.), the committee chair, in District Court, which dismissed the request that the subpoena be invalidated. The organization then appealed in the Circuit Court, and won. Ultimately, Eastland went to the Supreme Court, and won the case, and the subpoena was enforced.

Therefore, this is as clear an avenue to getting to the bottom of the IRS scandal in federal court when the time comes to enforce the subpoenas. And now, the Ways and Means Committee is laying the legal predicate for the courts to examine the White House, too.

For, unless there was a massive cover-up and violations of the Federal Records Act at every single agency and federal office Lerner and other IRS officials sent emails to, they should still be located on other federal servers.

Although the Eastland was a subpoena against a private organization, not the executive branch, the Court’s holding was pretty firm on the count that the subpoenas that serve a legitimate legislative function must be adhered to. The only shield the administration might be able to cite against Congressional scrutiny is executive privilege, and only then if the President was somehow involved.

If nothing else, as ALG’s Mehrens noted, “Waiting for Eric Holder to appoint a special prosecutor or the U.S. Attorney’s Office to enforce contempt citations is no longer a valid course of action.”

Besides, if the House believes it can sue Obama over failure to implement Obamacare, where its standing in court is much weaker and for which there is no precedent, then surely it believes it could enforce in court the subpoenas it issued, when there clearly is.

Robert Romano is the senior editor of Americans for Limited Government. 

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