By Dan Epstein One of the lingering mysteries of the Obama administration is how a presidential appointee gained access to confidential Internal Revenue Service information — and whether such activity is widespread at the White House. In 2010, Austan Goolsbee, then-chairman of the president’s Council of Economic Advisers, publicly divulged information about Koch Industries’ tax returns. This information should not have been available to anyone outside the IRS — especially a presidential appointee — yet Goolsbee casually trotted it out in a conference call with reporters.
We may finally be getting close to solving this mystery. Last month, I testified before the House Judiciary Committee about the Obama administration’s unprecedented use of a lawyer-exchange program that could be the source of the White House’s access to private tax-return information. I also urged the committee to exercise its full powers of oversight to investigate this new development. Cause of Action, where I am executive director, then filed a lawsuit asking the federal courts to force the Department of Justice to release records on this exchange program.
We have discovered through our investigation that at least 10 DOJ Tax Division attorneys have been loaned out — “detailed” — to the Office of the White House Counsel. In this capacity, they typically served as “clearance counsel,” vetting potential presidential appointees.
This arrangement raises serious ethical and legal questions. The DOJ attorneys have access to confidential taxpayer information, obtained during litigation on tax-related matters. They also have access to senior White House officials and presidential appointees. This set-up could potentially enable the White House to circumvent federal law, which permits presidential administrations to ask the IRS for return data, so long as it keeps Congress informed of its requests. Strangely, no such requests have been reported in the past seven years, even though Goolsbee and potentially other administration officials appear to have gained access to such information through as-yet-unknown means.
The lawyer-detailing program is now the logical place to look. On April 15, we asked the DOJ’s Inspector General to investigate whether appropriate legal and ethical safeguards are in place at both the agency and the White House. We have also initiated Freedom of Information Act requests to see if any problems have already arisen. Those subdivisions of the DOJ that have responded to our request have failed to produce any records that detailed attorneys were screened or the information they accessed safeguarded. The other divisions have simply refused to respond, or even to acknowledge our request for information.
The courts must end the agency’s silence. The public deserves to know whether all detailed DOJ attorneys were appropriately screened to prevent IRS information from being unlawfully accessed by or disclosed to White House staff and presidential appointees.
But we have reason to believe that such disclosure has already occurred, and not just in the Goolsbee incident. In November of 2014, the Treasury Inspector General for Tax Administration was ordered by a federal court to disclose to Cause of Action the existence of some 2,500 documents pertaining to unauthorized disclosures by the IRS to the White House. We are still waiting on the agency to provide this material.
Yet even without that information, other examples hint at the type of disclosure that could potentially occur through the lawyer exchange program.
Two examples stand out: Andrew Strelka and Norah Bringer. Both were assigned to the DOJ Tax Division, where they defended the IRS following its alleged targeting of the pro-Israel group Z Street. In this capacity, they both had access to substantial amounts of confidential taxpayer information. Strelka, who previously worked with Lois Lerner at the IRS, was also allegedly a participant in the agency’s targeting of conservative groups in 2011 and 2012. Despite their checkered histories, Strelka was assigned to Office of the White House Counsel in 2013, and Bringer followed the same path in 2014.
This arrangement should concern every American who cares about good government — the potential for abuse is obvious. That’s why the federal courts should force the Department of Justice to turn over documents pertaining to the revolving door between the Office of the White House Counsel and the DOJ’s Tax Division. And if the courts won’t help, then Congress should immediately begin an investigation. Members of the Obama administration appear to have obtained confidential taxpayer information, and the unprecedented use of the lawyer-detailing program could be how this happened. Our representatives owe it to us to solve this mystery.
Dan Epstein is the executive director of Cause of Action.
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