Over the week end of May 18-19 2013 the Obama Administration official Dan Pfeiffer went out and spun the IRS scandal saying “The law is irrelevant”. On the contrary, the law is very much relevant to the IRS scandal, including prohibitions against specific acts by IRS personnel and more general laws of which the ones to watch concern private civil actions for damages under the federal Racketeering, Influence and Corrupt Organizations (RICO) Act (18 USC 1961, et seq.) and Civil Rights Act (42 USC 1983, et seq.). There is every possibility that the victims of the IRS’s suppression of Obama political opponent free speech rights will sue the IRS and individual IRS employees under the civil rights and civil RICO laws for a $150-to-$650 million legal payday.
Remember, _THE IRS CONFESSED_. There is no argument that it admitted some of its actions concerning Tea Party organization tax-exempt applications were unlawful, i.e.., illegal. It is obvious that the IRS and its staff engaged in an organized multi-work unit, multi-state, plus Washington DC Headquarters, wide conspiracy to suppress the Tea Party. The IRS unlawfully applied special rules to Tea Party applicants that it did not to others and that conspiracy prevented them from exercising their free speech rights for the 2010 and 2012 election cycles.
It also is very clear that the IRS — via the questions it was asking the Tea Party and other religious non-profits — was busy creating a quite extensive Nixonian/Ailinskyite ENEMIES LIST for future use in intimidation and the depriving Obama Administration political opponents of their Constitutional Rights.
Those are classic CONSPIRACY AGAINST RIGHTS (18 USC 241) and DEPRIVATION RIGHTS UNDER COLOR OF LAW (18 USC 242) violations.
See these criminal federal civil rights statutes, whose violation gives rise to civil liability for damages too:
“Conspiracy Against Rights (18 USC 241)
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—
They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.”
“Deprivation Rights Under Color of Law (18 USC 242)
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both;
and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.”
That is the criminal side of things.
The problem AG Holder is going to suffer obstructing discovery in civil rights and civil RICO lawsuits against the IRS is that criminal prosecutions and civil suits for damages proceed in tandem. The civil suits aren’t stayed by criminal prosecutions on the same subject, let alone by criminal “investigations” short of prosecutions.
The IRS “Special Group’s” delay of tax exempt status prevented Tea Party NGO’s from fund raising and participating in two political cycles (2010 and 2012) by educating “low information voters” as to the political issues of the day, like the National Rifle Association does. The NGO’s whose applications for tax-exempt status were slow-rolled can claim “trade and business” damages under Civil RICO provisions of Federal law. And the Supreme Court of the USA decided decades ago that criminal acts by the Federal government “under the color of law” do not qualify for sovereign immunity under the Federal supremacy clause of the constitution.
To quote a lawyer I know –
They can now also recover damages for civil rights (42 USC 1983) and RICO (18 USC 1961) violations. The latter would be trebled. Plus statutory attorney fees. But it would be better if this ends up as a class action, brought by the @ 500 groups whose tax-exempt filing applications were slow-rolled, and the (wild-assed guess) 1000 – 5000 individuals subject to politically motivated tax audits, against both the IRS, its agents, and all the lefties who incited the IRS.
This is a classic civil conspiracy, to use unlawful means to achieve lawful ends, in addition to achieve unlawful ends, and every person who agreed to act in concert to do either is liable for the acts of all. See Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983). And they need not have committed any overt acts themselves – that’s the difference between civil conspiracy and criminal conspiracy.
So sue them all, every individual person (IRS agents, elected & appointed officials, petty politicos such as the staff of Democratic and leftist organizations, including journalists, who happily published unlawful leaks of confidential tax information, etc.) plus every entity suspected of having made such an agreement, and then do civil discovery on every single one of them. There’d probably be 5000+ defendants, counting all the indviduals. All their emails since 2009/01/01, all their phone calls, all their correspondence. I’d start with all the emails on Journolist.
Only those defendants subject to possible criminal liability, i.e., those who committed overt acts in furtherance of the conspiracy, can plead self-incrimination to avoid answering the civil discovery. And only individuals can assert 5th Amendment rights. Public and private entities cannot, and it is the latter who have custody of the email servers.
We are looking at 500 – 5000 plaintiffs with an easy $100,000 damage each (at least $50,000 average each in attorney fees, plus lost contributions for the NGO’s, emotional distress for the private individuals, etc.). That’s $50 – $500 million dollars, plus attorney fees of $100+ million. And $50 million of the damages might be trebled under RICO (18 USC 1961) as business damages for the NGO’s.
I.e., I think we can find some insurance companies willing to make policy limits offers, which can be leveraged with offers by their defendant insureds to squeal on the rest.
It is legal for law firms to offer shares in a contingent fee recovery to “investors”. I.e., various flavors of foreigners could finance expenses and basic attorney fees in such a class action, which reduces the risks to the big American law firms bringing it. The Swiss banks which recently paid billions of dollars in IRS penalties to settle DOJ criminal actions for tax evasion conspiracies might want to recover some of their losses this way, and get some payback too.
Consider that Pro Publica volunteered last week that the confidential tax records they published last year had been given to them by the IRS. This is classic “disassociation from the conspiracy” to cut off their criminal and civil liability as of the date of the disclosure. It was damage control by their attorneys, who realized the hammer is about to come down. IMO it won’t save Pro Publica unless they have information to trade for releases of liability, and just might have been a tacit signal that they are willing to deal.
The IRS Scandal will be civil RICO law suit city all the way because of the legal profit motive, as well as political payback motives, involved. And since most of the 471(+) Tea Party/Patriot non-profits still have not gotten their tax exempt application approved, the damages from the IRS conspiracy are rising daily. RICO discovery of IRS E-mails and other documents by a Federal Court-Appointed Special Master will air out exactly who did what to whom inside and outside the IRS (See Pro Publica).
Do expect AG Holder to act as hard as possible to block and delay this class action suit, “Due to on-going criminal investigations.” The Federal Courts won’t look kindly upon these efforts.
Court TV will love it; they will get a whole new audience to sell soap to for years.