Will anyone go to jail over IRS targeting?
Amid unfolding drama about alleged political discrimination perpetrated by the Internal Revenue Service (IRS), President Obama's political adversaries, and even some of his allies, are calling for heads to roll -- and more.
"My question isn't about who's going to resign," House Speaker John Boehner, R-Ohio, told reporters on Wednesday. "My question is about who's going to jail over this scandal."
Until the Justice Department completes its investigation into the controversial IRS practices, which were outlined in an inspector general's report released Tuesday, no one knows for sure "who's going to jail," if anyone, over the controversy. But according to legal experts, the case will be a tough one to prosecute criminally -- and any IRS or government officials who might get convicted aren't likely to end up behind bars for too long.
"This is not the O.J. Simpson case here," said David Laufman, a former Justice Department lawyer and congressional investigative attorney. "We're talking about regulatory misconduct and possibly just misjudgment by people in a zone of conduct that had extreme political consequences. If these folks at the IRS were acting in the misguided belief that they were complying with their legal duties and obligations and authorities, that conduct is going to fall short for what is necessary to bring criminal charges."
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The Obama administration and the IRS have been under harsh scrutiny since Friday, when the agency apologized for having singled out particular groups -- particularly those with tea party ties -- for extra scrutiny when seeking tax-exempt status.
A timeline released in Tuesday's report showed that in the spring of 2010, the IRS began targeting groups with keywords like "Tea Party," "Patriot" and "9/12 Project" in their names to flag for heightened, typically burdensome, scrutiny. The agency insisted last week that no high-level employees were aware of the practice, but the IG report alleges that Lois Lerner -- an IRS official in charge of oversight of tax-exempt groups -- knew about it as early as June 2011. On Wednesday, a congressional source confirmed to CBS News that two Cincinnati-based IRS employees had been disciplined and were "off reservation."
Any criminal prosecution ultimately depends on what the Justice Department's investigation yields, but there are a few laws that experts say may have been broken.
"I'm sure the Justice Department will look at all the statements that the IRS made to various committees" for possible examples of "false statements" violations, said Nathan Hochman, formerly an assistant attorney general for the Justice Department's Tax Division and now a lawyer with the firm Bingham McCutchen, LLP. In that case, anyone who has "knowingly false made statements to a government agency," or wittingly given incorrect testimony before a congressional committee, could get up to five years in prison or pay $250,000 in fines.
Among the officials who may be investigated for possible "false statement" charges include Lerner, former IRS commissioner Douglas Shulman, and Steven Miller, who stepped down Wednesday evening as acting commissioner of the IRS.
Miller, a former deputy commissioner who replaced Shulman late last year, delivered congressional testimony about the agency's process for dealing with tax-exempt applications in July of 2012, two months after he reportedly learned of the IRS's targeting policy. In his testimony, however, he did not mention the agency's heightened scrutiny for the applications of conservative groups. Instead, when asked about complaints of being "harassed" from politically active groups, Miller said the IRS "did group those organizations together to ensure consistency, to ensure quality," but he did not state that they had been specifically targeted by political affiliation for higher scrutiny.
After learning of the controversial IRS practice, Miller also wrote at least two letters to Congress explaining the process for reviewing tax-exempt status applications; in neither of those letters did he mention the targeting.
But to clinch a conviction on this count, prosecutors will need to prove not just that the false statements were made, but also that whoever made them knew it at the time. The distinction between having omitted certain facts without actually lying is another defense against the "false statements" charge, which will likely be a key factor in any criminal case.
In a congressional hearing on Wednesday, Attorney General Eric Holder cited the Hatch Act -- which prohibits federal employees from engaging in certain partisan activities -- as one statute that might be relevant to a criminal investigation. Other laws that might have been broken, according to Hans von Spakovsky, a former Justice Department lawyer under former President George W. Bush, are two "deprivation of rights" laws, which he says are "very general statutes that basically say it's unlawful to deprive a person of any right privilege or immunity, secured or protected by the Constitution or laws."
Proving this kind of wrongdoing be tricky for prosecutors in a few ways, according to experts, because prosecutors would have to establish not just that the law was broken but that it was broken with criminal intent. And the actual law on this point is kind of murky.
According to Suzanne Ross McDowell, a partner with Steptoe & Johnson who heads the American Bar Association's exempt organization committee, the rules governing 501(c)(4) groups -- those which were targeted for increased scrutiny -- are "extremely vague" as it is.
These kinds of groups are supposed to be operated "primarily for social welfare purposes," she said, but that, already, is a hard thing to define.
"The definition of 'social welfare is itself somewhat vague. The definition of 'primarily' is uncertain," McDowell said. Meanwhile, 501(c)(4) groups are allowed to engage in lobbying and issue advocacy, but drawing the line between that type of activity -- which could be characterized as "political" -- and behavior that is actively intervening in a political campaign (which is prohibited) is "extremely difficult."
"There's room for judgment calls about what is too much involvement in politics," said Ilya Shaprio, a senior fellow in constitutional studies at the Cato Institute. "At the end of the, day the IRS isn't supposed to be the agency that's enforcing campaign finance laws -- that's the FEC -- so you're getting into areas where the tax professionals don't necessarily even have expertise or training."
Even if it's agreed that the law was broken, proving criminal intent requires clear-cut evidence that the person did so willfully, which basically requires cold, hard, documentation.
"Unless there's some smoking gun e-mail or memo out there that shows people knowingly violated citizens' first amendment rights, it'll be very hard to show criminal intent in a case like this," Hochman told CBSNews.com.
At the end of the day, several experts told CBSNews.com it's doubtful anyone will end up behind bars for any significant period of time.
"It's often a steep hill to climb for the government in cases of regulatory conduct," Laufman said. "If it turns out that the only thing that was violated were internal IRS protocols or standards or policies, then that's conduct that can be addressed administratively within IRS or the Treasury Department -- it's not going to rise to criminal culpability."
