Sekulow remembers his office started getting calls as soon as the questionnaires hit, and he quickly agreed to get on a national call. “The purpose of that call was to say that we needed a unified response, that we were going to stand together in pushing back against questions that were not within the scope of legitimate inquiry,” he recalls. He was also interested in figuring out “who in the world was triggering this.” Sekulow started his career as an IRS trial attorney, and he is familiar with tax-exempt issues. To him, “It was clear this was not coming from a local agent. No agent would look in the manual and ever see this kind of questioning. So it was clear right off to me that something else, bigger, was going on.”
Sekulow on that call offered to represent those hit by the interrogatories. At a practical level, this meant that ACLJ attorneys would help to pilot groups through the process, advising them on what they did need to provide, what they didn’t, and how to deal with the IRS. He also reassured participants that ACLJ’s representation would help protect against IRS retaliation. He even suggested that the IRS letters might be grounds for a civil rights lawsuit, given the questions about donors and what appeared to potentially be an effort by the federal government to get access to the Tea Party’s membership rolls. Because Sekulow was astounded: “In thirty-five years of law I’ve seen laws that were poorly written and violations of free speech because regulations were poorly imposed. But I’d never seen a deliberate case of targeting of a political group by the government in all my years. This was the NAACP; it was the same playbook.”
By the time of that call, Kenney had already been sitting in her garage for hours, sorting through handouts and files, along with hours more of lugging things off to make copies and put in order so as to comply with the IRS questionnaire. She was coming up on the extended deadline and so decided to just send her reply in.
Before she’d even mailed it, she got slammed with a second round of questions. (I kept getting this mental image of Godzilla versus Bambi. Stomp. Stomp. Stomp.) The harassment was no less obnoxious, the amount of work required to fulfill the IRS request no less intense. But this time, with ACLJ on board, Kenney felt more confident. “What they primarily did was to help us not feel intimidated,” she recalls. “They started acting as a gatekeeper, and they slowed it down. They got the IRS to back off somewhat. They couldn’t stop the IRS from asking the questions, but they gave us confidence that we weren’t in this alone.”
Kenney went back to the garage, back to the copy machine, and got the second round of responses in the mail by the end of March. And then she waited. Again. SFVP continued to hold its meetings, and talk about politics, and put out its newsletter. Kenney increased her correspondence with other Tea Party members about the state of the investigation, and kept her people updated on what was happening in Congress. The more she heard—about the questions groups were being asked, and their treatment by the tax authority—the more alarmed she became about the IRS’s real intentions. The agency looked to be compiling a dossier that included the identification of Tea Party members, how they were selected, who they associated with, what they discussed, and even the names and contact information for their relatives.
In June, she opened her mailbox; sitting there was a third interrogatory. This one wanted the names and Social Security numbers of every person who had ever donated time or money to her organization.
Kenney was shocked. And scared. “I got it in my head that they weren’t going to stop until I gave them the tax information on all of our attendees.” And that, for her, was a no-go zone. She’d wanted tax-exempt status to improve her chance at grants, or perhaps have more financial ability to do public education during elections. Now the IRS was telling her that the price of that civic involvement was blowing up the anonymity of her members.
She chose her people. “I have people who show up and write tiny checks, or who give $5 or $10. They came to be involved. I had no intention of turning them over to the government.”
She was also just sick of the process; she’d been hounded to breaking point. “It was such a burden, the requests, the delays. It was like, ‘If you are going to grant it, just grant it—don’t delay it forever.’ It was like living on an eternal pause button.”
Kenney pulled the plug. She wrote to the IRS telling the agency to rip up her application. The federal government had won.
* * *
Kenney was right to be scared. Her decision to withdraw meant her IRS abuse ended at three questionnaires. Groups that continued to fight the process weren’t so lucky.
Cleta Mitchell had without realizing it signed up to represent one that would become a national poster child for the perils of tangling with an abusive federal government and Democratic Congress. Mitchell had spent all of 2011 “haranguing” the IRS over that application she’d first filed in 2009. Nothing. Come February, her client, like more than a hundred other conservative groups, was whipsawed with a questionnaire. Mitchell dialed into that first conference call and heard Tea Party leaders recounting their experiences. “It was wild,” she remembers. “There was an accountant—he said he’d never seen anything like this in thirty years. There were people saying the IRS had asked if any candidate had ever spoken at any of their meetings, and they are freaking out, saying ‘Wait, we were not supposed to do that? Why?’ The IRS wanted transcripts of meetings, and groups didn’t have them. Everyone was so worried.”
And then Engelbrecht got in touch. She’d received not one but two letters—inquiries into each of her groups, King Street Patriots and True the Vote. The KSP letter contained 95 questions and requests for documents, including copies of every page of its website, every fund-raising solicitation, every page of its training materials, every sheet of its handouts at all of its public events. The True the Vote inquiry—the IRS’s second request for information from that group—contained a stunning 120 questions.
“They wanted everything: where she’d spoken, where she was planning to speak—for the next two years. Two years! When I got those letters I went insane. I redacted the identifying information about the specific clients, IRS agents, and offices, and then started stalking everyone on the Hill—staffers at House Ways and Means, House Oversight, Senate Finance. I kept saying over and over, ‘Guys, something is really going on, and it’s been really going on for two years,’” says Mitchell.
The lawyer started working with her clients to answer the interrogations. Only she didn’t roll over. “I’d call these agents up and I’d say, ‘You do realize that donor information is not public? You do realize you are telling us to disclose something that the statute says is confidential? How does that work?’ And then they’d scurry around and say, ‘Oh, you don’t have to disclose the names, just the amounts.’ And I’d say, ‘Is that so?’ And more scurrying, and then I’d get, ‘Just skip that question.’”
She continues, “But that was one of the outrages of this; most people didn’t have representation. And if you didn’t have a Cleta Mitchell type barking at the IRS for you, you were stuck complying with a process the agency had dreamed up out of whole cloth.”
Mitchell also refused to play IRS games. She had one client applying for charitable status whose only mission was to educate about the Constitution and provide constitutional discussion guides to newly elected members of Congress. When the IRS demanded to know what materials the group was using, Mitchell mailed them a free copy of the Constitution. Nothing else. “I mean, how stupid are these people?” she asks, answering her own question.
True the Vote offered its reply to the IRS questions in March. It went back into limbo, only to get a fourth questionnaire a year later. KSP’s response wouldn’t go out until May 2012, and totaled more than three hundred pages. It got another demand for details in October.
The IRS process, and the delays, hit both of Engelbrecht’s organizations hard. The IRS’s questions were so intrusive and technical that Mitchell’s help was required at nearly every step. Legal bills started to pile up. At the same time,
donors were reluctant to write checks to an organization that didn’t have official (c)(3) or (c)(4) status, and her lack of tax-exempt status disqualified her from applying for many foundation grants. She struggled to pull in money. In one case, TTV received grant money on the condition that it would receive its (c)(3) status by the end of the year. When it didn’t materialize, Engelbrecht had to hand the money back. “When I look back on this time, I get misty-eyed,” she admits. “We were passing a cowboy hat around at meetings to keep going. We were getting calls from people across the whole country saying, ‘Will you work with us?’ And yet I couldn’t legitimize our status.”
And the IRS questionnaires were almost the least of Engelbrecht’s problems. She appeared to have become the target of a full-blown assault by entire departments of the federal government, as well as by powerful Democratic congressional leaders and outside liberal organizations—a crackdown inspired in no small part by the president of the United States.
Democrats didn’t like any conservative (c)(4)s, but they particularly hated Engelbrecht’s. They’d stewed for years over state efforts to tighten up voter ID laws and to weed out voting fraud. President Obama and Attorney General Eric Holder viciously criticized the laws, suggesting they were designed to “suppress” turnout among minorities. Since True the Vote was set up to aid in educating about and implementing the new voter ID laws, Democrats instantly zeroed in on the organization as a particularly hated target.
Engelbrecht Manufacturing was founded in 1994. From that day until 2010, Catherine had no interaction with the federal government other than to file the company’s annual taxes. Then she applied for tax-exempt status for her two groups.
At the beginning of 2011 the IRS showed up to audit two years’ worth of business taxes. Over the course of the year, the FBI would contact Engelbrecht six times—four phone calls and two personal visits. They were inquiries both about a strange visitor at a KSP event and also about KSP’s broader activities. In June, the IRS audited her personal tax returns, for both 2008 and 2009. In February 2012—the same month that KSP and TTV were hit with IRS questionnaires—the Bureau of Alcohol, Tobacco, and Firearms showed up for an audit of Engelbrecht Manufacturing. It was a bizarre visit; the company has a license to manufacture gun parts, but doesn’t actually do so. And that fact was closely documented. And yet not only did ATF show up, but as part of its audit the agents asked for a look inside a personal gun safe. “I don’t necessarily have a beef with the folks that came out—they were just doing their job. But my question remained not why they came—but who sent them?” she says.
In July, the Occupational Safety and Health Administration came knocking for its own audit, grilling company employees. OSHA soon sent Engelbrecht Manufacturing a $25,000 fine for trivial infractions. In November, the Texas Commission on Environmental Quality arrived for an audit, saying it had received an anonymous complaint. The agency demanded she pay for new permits. A few months later, ATF was back again, on yet another unscheduled audit. Once is happenstance. Twice is coincidence. Three times is enemy action. (Or so wrote Ian Fleming, the famous author of the James Bond series.)
Engelbrecht didn’t tell anybody about these visits for a long time. And it was only when she finally did tell Mitchell that she realized she’d fallen for the government’s tricks. “I remember saying to Cleta, ‘Can I run something by you? It sounds crazy, but I feel like I can hear the propeller blades of a black helicopter over my shoulder. So I just need a reality check.’ And so I told her. And she said, ‘Catherine, why on earth haven’t you said anything?! This is unacceptable, this is orchestrated, this is outrageous,’” remembers Engelbrecht. “And it choked me up when she said that. A light switch went on. And I realized that what had been perpetrated against me had worked. I’d stayed silent. I’d just hunkered down and tried to be a better citizen. When what I needed to do was go tell the story. That was my real power.”
That decision gave Engelbrecht more determination to face what was still to come—including an assault by Democratic members of Congress and the president’s campaign team.
In September 2012, California Senate Democrat Barbara Boxer sicced the Justice Department’s Civil Rights Division on True the Vote, writing a letter accusing it of “leading a voter suppression campaign” and nicknaming it “Stop the Vote.” A few weeks later, Maryland Democrat Elijah Cummings, the ranking member on the House Oversight Committee, launched his own investigation into TTV, sending Engelbrecht an extensive questionnaire that mirrored the IRS’s inquisition. Engelbrecht politely suggested that the congressman didn’t understand her group’s work, and offered to fly all the way to Washington to explain. Cummings responded by asking for even more documents. “I accept your offer to come to Washington and answer these allegations, but only after you provide the documents I requested.” He then went on to ominously claim she was engaged in “a criminal conspiracy to deny legitimate voters their Constitutional rights.” Cummings proceeded to go on TV to attack the group.
Even as Cummings launched his salvo, Bob Bauer swung into action. This was an election year, and the Obama campaign general counsel again resorted to intimidation. He issued an open memo accusing TTV of coordinating with Republicans to engage in “vote suppression.” His memo was a near-identical read to Cummings’s letter to Engelbrecht—leveling the same accusations, marshaling the same specific events and facts—even though the Cummings letter hadn’t yet been made public. And Cummings’s demands of the group were strikingly similar to those posed by the IRS.
Indeed, e-mails would later show that the IRS had helped Cummings. In January 2013, an IRS employee informed Lerner and Paz that “the House oversight committee…has requested any publicly available information on an entity that they believe has filed for c3 status.…The entity is KSP True the Vote.” Lerner and Paz personally saw to it that the request was fulfilled. This Paz e-mail would later come to Congress with significant parts redacted, marked as containing confidential taxpayer information. It’s a crime for the IRS to share such information, even with most of Congress, and it is still unclear what Cummings obtained. Cummings initially denied that he or his staff had even reached out to the IRS, until the e-mails showed that to be false.
“Everything,” says Mitchell, “everything was a complete abandonment of the rule of law. It was all the forces of government using harassment and intimidation to shut people down.”
Mitchell attends a monthly meeting of tax attorneys in D.C., a brown-bag affair at which a friendly mix of liberal and conservative lawyers discuss issues and news. Mitchell in the spring took along several redacted IRS questionnaires. “I said, ‘Any of you boys getting these?’ No one on the left had.” Mitchell kept bringing up the issue at the lunch meetings through 2012 and 2013, inspiring a few liberal colleagues to declare her obsessed. So she took particular pleasure in showing up at the June 2013 event after Lerner’s turn in the spotlight. “‘We thought you were crazy, Cleta, we thought you were being paranoid,’” Mitchell recalls them saying. “And I remember responding, ‘Just because I’m paranoid, it doesn’t mean someone isn’t out to get my clients.’”
* * *
Republicans were paying attention to the calls flooding in about those February 2012 questionnaires. Before the month was even out, GOP legislators had called in Lerner to brief them on the IRS’s tax-exempt process. The chief boldly told Oversight staffers that the criteria for evaluating applications had not changed—which was untrue. Lerner herself had ordered it changed the prior July. She also made reference to the guide sheet Cincinnati was using to evaluate applications and offered to send a copy. That promise prompted a flurry of e-mails back at IRS headquarters, as lawyers and leadership worried about the document’s content. The IRS never did send a copy. Lerner in the ensuing months continued to insist to Congress that everything happening at the IRS was in “the ordinary course” of things.
She wasn’t alone in juking Congress. Immediately following that first briefing to congressio
nal staff, Lerner got the command from Deputy Commissioner Steven Miller to explain what all the fuss was about. In that meeting, she acknowledged that there were more than two hundred applications on ice, and that the IRS had asked for information about donors. Miller passed those details on to IRS commissioner Doug Shulman. Only a few weeks later, when Shulman was asked at a congressional hearing whether the IRS was singling out groups, he’d nonetheless reply that “there is absolutely no targeting.”
This is notable, given that inside the IRS senior leaders were realizing they had a problem. The very day after Shulman’s testimony, Deputy Commissioner Miller convened senior staff to get a handle on what was going on—a meeting at which he’d admit that the news that the IRS was demanding donor information was “not very good.” He was alarmed enough to dispatch a trusted adviser, Nan Marks, to Cincinnati to get a bead on the situation by conducting an internal review. Marks spent weeks evaluating the Cincy operation, and in early May presented her findings at a meeting that included Miller and Lerner. She told the deputy commissioner about the Be On the Lookout list, the use of Tea Party terms, the excessive delays, the inappropriate questions, the test cases. She told him that Cincinnati had been waiting for Washington’s orders. Miller, the number two official at the IRS, was therefore as of May 2012 fully aware of everything that would ultimately cause a sensation a year later. And yet in public testimony after public testimony in front of Congress, he chose not to reveal the situation—not even when he replaced Shulman as acting commissioner in November of that year. At one point in July 2012 he was worried enough about an upcoming appearance that his staff drew up sample questions he might be asked about targeting. When the testimony passed without any direct reference, Lerner sent him an e-mail congratulating him that the hearing had “turned out to be far more boring than it might have been.”
The Intimidation Game Page 13
