Investigations
of the IRS are taking place not only in Congress but also in court. One case,
which has developed slowly since it was filed in 2010, reveals much about both
the long reach of the agency and the interwoven nature of the broader federal
bureaucracy.
Defending
IRS commissioner John Koskinen against the claims of the pro-Israel group Z
Street is Andrew Strelka — and before joining the Department of Justice’s
civil-trial section, Strelka worked at the IRS for Lois Lerner, who was then
the agency’s head of exempt organizations. As it happens, this is the very IRS
division at which the mistreatment of Z Street is alleged to have occurred —
and Strelka worked there at the very time Z Street’s application for tax-exempt
status was being considered.
Scott
Coffina, a partner at the Washington, D.C. law firm Drinker Biddle & Reath
and a former Justice Department prosecutor says Strelka’s representation could
violate Washington, D.C.’s rules of professional conduct for lawyers in
“several” ways, in particular the rule that prohibits a lawyer from
representing a client in a matter where “The lawyer’s professional judgment on
behalf of the client will be or reasonably may be adversely affected” by his
personal interests. “If Mr. Strelka was involved in the targeting of
conservative groups,” Coffina says, “it is hard to imagine that he can give
dispassionate advice. He would have a tough time evaluating the merits of the
plaintiff’s case and advising his client on strategies in the litigation. He
seems to have a personal conflict of interest.”
Another
rule proscribes attorneys from participating in cases in which they might be
called as witnesses, though Coffina explains that to be called as a witness and
Strelka’s testimony would have to be necessary to the case. “The government
might be able to get around it and keep the lawyer in place in there is another
IRS employee available to testify
on what the lawyer might testify to himself,” he says.
Z
Street founder Lori Lowenthal Marcus tells National Review Online of the
situation: “Nothing surprises me.”
She
filed the group’s application for tax exemption in 2009, and Z Street, whose
mission is to educate people about Zionism, sued the IRS for alleged violations
of its First Amendment rights the following year. According to Marcus, an IRS
employee told her Z Street’s application was sent to Washington for extra
scrutiny because the group was “connected with Israel” and expressed opposition
to the Obama administration’s foreign policy. (An IRS agent subsequently told
the House Oversight Committee that the applications of pro-Israel groups were
considered “specialty cases” and routinely sent to an antiterrorism unit for
extra screening.) Though the IRS has attempted since 2010 to get the case
thrown out of court, Judge Ketanji Brown Jackson ruled in late May that it will
move forward, and the agency will have to defend itself in court. Z Street has
yet to receive its tax-exempt status.
While
at the IRS, documents indicate, Strelka was kept abreast of the agency’s targeting
practices. He is one of 14 employees who received an e-mail from agency
attorney Ronald Shoemaker on March 17, 2010, instructing them to “be on the
lookout for a tea party case.” Shoemaker told the group that if they received
any applications “involving an exemption for an organization having to do with
tea party [sic], let me know.” Status reports from July and September 2010
tracking the progress of particular applications show that Strelka was handling
a case that had been designated to Group 7825, which at the time handled
tea-party applications.
Strelka
— who did not respond to an e-mail seeking an interview — was working at the
IRS as a part of the Presidential Management Fellows Program, a two-year
program that aims to groom government leaders in part by placing participants
in jobs throughout the federal government. According to his LinkedIn profile,
after completing his two years at the IRS, Strelka left for the Justice
Department’s civil-trial section in August 2010 and was detailed in the White
House Counsel’s office for seven months, from last December until June.