As the Obama administration tries to regain its footing after a tough two weeks, White House senior adviser Dan Pfeiffer made the rounds on the Sunday talk shows this week. One exchange raised some eyebrows. When ABC News' George Stephanopoulos asked Pfeiffer if anyone at the IRS broke the law by singling out conservative groups applying for tax-exempt status, he responded: "I can't speak to the law here. The law is irrelevant."
After Pfeiffer elaborated — "The activity was outrageous and inexcusable, and it was stopped and it needs to be fixed to ensure it never happens again" — Stephanopoulos stopped him: "You don't really mean the law is irrelevant, do you?" It wasn't, exactly. The Justice Department is investigating whether any laws were broken, Pfeiffer responded, but "the president is not going to wait for that."
Regardless, the legal question looms large over the IRS scandal. Republicans on Sunday mostly tried to tie the scandal to the Obama administration. But last week, after acting Commissioner Steven Miller stepped down, House Speaker John Boehner (R-Ohio) issued this call to arms: "My question isn't about who's going to resign, my question is who's going to jail over this scandal?" Miller, in testimony before a House committee on Friday, said he believed no laws were broken (except perhaps the laws of good sense and customer service).
If nobody broke the law, the answer to Boehner's question is probably "nobody." Perhaps unsurprisingly, the lawyer for 27 Tea Party groups suing the IRS says that laws were, in fact, broken. "This is not only unconstitutional, it is illegal," said Jay Sekulow, chief counsel for the conservative American Center for Law and Justice, at a rally with Rep. Michele Bachmann (R-Minn.), herself a former tax lawyer.
The Tea Party lawsuits are civil, meaning they will be about money, not any criminality, but Washington Post blogger Jennifer Rubin congratulates the groups for advancing the legal question: "Good for them. Through the civil discovery process they can compel individuals to disclose what they did, with whom they discussed the issue, and how this scheme was kept quiet."
That's fine for the future, but what do we know now? asks Aaron Blake at The Washington Post. "Did the IRS' conduct take a step beyond mere 'wrongdoing' and venture into criminal territory?" Blake doesn't exactly have the answer, either: "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," Republican lawyer Jan Baran tells The Washington Post. And "other politically inclined lawyers agree," says Blake. There are three basic ways IRS employees could have broken the law, Blake adds. They could have violated:
1) Civil rights laws that protect people from being discriminated against by the government2) The Hatch Act, which prevents civil servants from engaging in partisan political activity3) Perjury laws, which prevent people from lying to Congress
To prove that anyone at the IRS targeted Tea Party groups for political reasons, lawyers would need to prove intent — that they knew what they were doing was against the law and did it anyway. For conservative groups and congressional Republicans, "it may seem self-evident that the motivation was political, but proving that in a court of law is another matter entirely," says Blake. And that's "why we're seeing such a concerted effort from the IRS to emphasize that it was about incompetence rather than politics."
Republicans will try to prove the opposite. Stay tuned.