The Conversation

Twisted Principles in the IRS Scandal

In today's hearing before the House Committee on Oversight and Government reform, IRS Exempt Organizations director Lois Lerner will be taking the Fifth. But what former IRS Commissioner Douglas Shulman and Acting Commissioner Steven Miller said in recent hearings on Capitol Hill is reason enough to be alarmed at the IRS's contempt for congressional oversight and the Constitution's separation of powers.

Miller and Shulman have both acknowledged wrongdoing, but what they have both defended--staunchly--is their decision not to inform Congress that the IRS was singling out Tea Party and conservative groups, after having previously testified to Congress that it was not doing so. When they discovered new information that contradicted their original testimony, both apparently made the decision not to correct the record.

In Miller's case, he orchestrated a planted question at a American Bar Association conference on May 10 so that the ABA and the media would find out before Congress. In Shulman's case, as he testified to the Senate Finance Committee on Tuesday, he decided that the fact that the Inspector General for Tax Administration had begun investigating meant he ought not tell Congress. Shulman proudly called that the "right decision."

At Wednesday's hearing, committee chair Rep. Darrell Issa (R-CA) criticized the Inspector General himself, J. Russell George, for failing to inform Congress of the serious allegations he was investigating at the IRS, noting that the Inspector General is under an existing legal obligation to do so. It was the first serious public criticism of George, who has generally presented a favorable impression, in the IRS scandal thus far.

There are three lapses here--one ethical, one legal, and one constitutional. The ethical lapse is the duty that every lawyer--Miller, Shulman, Lerner and George are all lawyers--arguably has to disclose information that has been requested by Congress, so long as that information does not violate a duty of confidentiality or attorney-client privilege. The legal lapse is George's failure to provide information, and the apparently false testimony of some of the witnesses before Congress. And the constitutional lapse is the decision by Miller and Shulman (in particular) that the executive branch's oversight of itself superseded legislative oversight.

That constitutional lapse suggests the problem in the IRS is not a matter of low-level misconduct but twisted principles set by an executive that routinely exceeds its powers and treats Congress with disdain.


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