We’re already hearing politicians talking about putting the IRS employees accused of targeting conservative organizations out of political bias in jail. However, as Aaron Blake notes, it’s unclear whether they actually broke any laws:
In short: We don’t know yet. But it’s also quite possible that nobody will ever be convicted of breaking the law in the IRS scandal.
“I am not aware of any statute that prohibits IRS targeting of applicants,” said Republican lawyer Jan Baran, who served as general counsel to George H.W. Bush and the RNC. Other politically inclined lawyers agree.
Essentially, there are three types of laws that might conceivably have been broken, as Attorney General Eric Holder acknowledged in his testimony before a House committee Wednesday:
1) Civil rights laws that protect people from being discriminated against by the government
2) The Hatch Act, which prevents civil servants from engaging in partisan political activity
3) Perjury laws, which prevent people from lying to Congress
For the third law to have been broken, Republicans would have to prove that IRS officials knew of improper targeting of conservatives and testified to the opposite effect. They have noted that then-IRS commissioner Douglas Shulman testified in March 2012 that there was no such targeting going on.
But for that to be perjury, Shulman would have had to know that he was lying. Miller admitted Friday that Shulman was wrong but suggested he wasn’t aware of the targeting.
“It was incorrect, but whether it was untruthful or not … ” Miller said, tailing off. He later added: “To my knowledge, I don’t believe he knew at the time.”
As for the first two laws, it likely would have to be proved that the staff members involved in targeting the conservative groups were deliberately doing so for political purposes.
“You would want some direct evidence of intent, that people knew what they were doing was wrong and they decided to do it anyway,” Nathan Hochman, a former assistant attorney general in the Justice Department’s tax division, told Bloomberg News.
(…)
It may seem self-evident that the motivation was political, but proving that in a court of law is another matter entirely. And until that political motivation is proven, it will be tough to land convictions under the first two laws mentioned above.
That’s also why we’re seeing such a concerted effort from the IRS to emphasize that it was about incompetence rather than politics.
Proving intent is obviously the most difficult thing here. The fact that there appears to have been a disparate impact on conservative organizations does tend to make one question the idea that this was all simple incompetence, but it’s not likely to be sufficient for a criminal trial. In the end, despite the calls, we may end up with nobody going to jail at all.
