National Review’s Eliana Johnson has an important story today about a transfer of over a million pages of confidential tax documents to the Department of Justice back in 2010. It now appears that the transfer of those materials, made at Lois Lerner’s behest, violated the law.
The existence of the transfer itself has been known since 2014, but how exactly it was accomplished has not been clear. As the story explains, there were two ways in which the transfer could legally have been made, but this transfer did not meet either of those legal requirements.
Federal law prohibits the IRS from sharing tax returns filed with the agency, with very limited exceptions…Documents suggest that Lerner’s massive document transfer to the DOJ didn’t meet any of those exceptions, including one that allows the agency to disclose returns for use in criminal investigations — if they’ve been requested in relation to “an actual investigation about a person to whom the investigation is related,” says [former assistant Attorney General Eileen] O’Connor…
A lawful transfer of the documents would have required a formal request from the DOJ to the IRS, but DOJ trial attorney Stephanie Sasarak told Cause of Action in a March 9, 2016, letter that the department did not make any requests to the IRS for the documents it received. Alternatively, the secretary of the Treasury could have turned the documents over to the DOJ. In either case, section 6103 requires the Treasury secretary to disclose the transfer to the bipartisan Joint Committee on Taxation, which releases publicly a list of disclosures each year. But the Joint Committee on Taxation’s 2010 disclosure report does not show a transfer to the Department of Justice that matches the one Lerner sent in October of that year.
So the DOJ did not request the documents and the Secretary of the Treasury did not turn them over, or at the least did not notify the Joint Committee on Taxation as required. It seems as if the IRS, again at Lerner’s behest, handed the material over in violation of the law.
All of this took place at a moment in time when the Democratic Party, vocally led by President Obama, was concerned about the impact the Citizens United decision would have on elections. The president made the SCOTUS decision a major issue at the State of the Union and continued to campaign against it, and to promote a fix called the DISCLOSE act, until it failed in Congress that summer.
The same month that the confidential tax records were handed over to the DOJ, Lois Lerner spoke to a group at Duke’s Sanford School of Public Policy. Lerner told the group there was pressure being placed on the IRS to “fix” the problem. “So everybody is screaming at us right now ‘Fix it now before the election. Can’t you see how much these people are spending?'” Lerner said.
While Lerner concluded, “I can’t do anything right now” she may have hoped the DOJ could do something. And by turning over confidential tax documents for their perusal, it appears the law may have been violated.