- - Friday, June 7, 2013

This past weekend, a popular tabloid recited the litany of administration scandals and carried the following sensational headline: “Worse than Nixon!” Tabloids are tabloids, but it raises an interesting question: How does the Internal Revenue Service scandal compare to Watergate?

Forty years ago, the White House spokesman called the Watergate break-in a “third-rate burglary” of the offices of the Democratic National Committee. While it may have been third-rate, it was also a crime, committed in the pursuit of political power. It led to a cover-up that created a constitutional crisis and shook our faith in government. The question is whether, and to what extent, history has repeated itself.

Like 40 years ago, White House apologists today describe the targeting of conservative Americans by the IRS as a third-rate bureaucratic bungle, committed by low-level officials in Ohio. Like the Watergate break-in, it is a crime. Federal law makes it a felony to deprive Americans of the exercise of their constitutional rights under color of law. While the IRS has a duty to ensure tax-exempt organizations qualify for that treatment, it has an even greater duty to conduct itself lawfully and evenhandedly in the administration of all of its responsibilities. It failed those tests here. It targeted people on the basis of their constitutionally protected political affiliations and opinions. This is far worse than the burglary at the Watergate in Washington. This particular offense was directed at traditional, law-abiding Americans all over the country and involved chilling and widespread abuses of federal power.

Another important difference is that the Watergate burglars were not government employees. No government agency was implicated in the initial break-in. This time around, the misconduct is taking place in what may be the most powerful — and feared — government agency in the country. To ordinary Americans, it looks like the IRS spent taxpayer money to conduct a potentially criminal enterprise directed at the Americans who pay their salary. It was not only wrong, it was a betrayal of the public’s trust in government. At this stage, the IRS scandal is far more serious than the initial Watergate break-in.


It is also clumsier, if that’s possible. The head of the IRS office responsible for the misconduct tried to get ahead of the report of the inspector general with a planted question-and-answer at a bar association meeting. There, she apologized for what she described as activities that were “wrong.” She then insisted to Congress that she had done nothing “wrong,” and then pleaded the Fifth Amendment. Her performance made Nixon’s plumbers look like surgeons.

Nevertheless, the Watergate scandal became a constitutional crisis not because of the break-in itself, but because of the White House cover-up and what that cover-up said about government and its accountability to the electorate. The IRS scandal starts with the operation of government itself, and what appears to be its total lack of accountability. Without accountability, our form of representative government cannot function. This scandal, therefore, requires a different analysis.

First, IRS officials knew exactly what they were doing. They did what politicians wanted them to do. Democratic campaigns and their allies targeted what they perceived as hostile (i.e., conservative) 501(c)(4) organizations and sought official action against them. For example, the IRS initiated a futile audit of Freedom’s Watch at the request of the Democratic Congressional Campaign Committee. In an unprecedented and unwarranted abuse of power, the IRS then went after Freedom’s Watch’s donors. Nothing came of that, either. However, keeping conservatives on the defensive by systematically getting the IRS and other government agencies to target them was part of the political strategy of Democratic campaigns. Anyone remotely familiar with administrative process will hardly be surprised when an agency initiates on its own investigations of the kind requested by its political masters. The notion that the ethical lapse here was that of the agency itself, rather than of those filing the complaints and urging that action, is both cowardly and contemptible. Anyone remotely familiar with the IRS will know the policy had to come from Washington, not agents in Ohio.

Second, Democrats have perfected a new strategy of pandering to public-sector unions for political gain. This strategy is to use taxpayer dollars to buy the political loyalty and support of public-sector employees, leaving fiscal policy to be set at a bargaining table with unelected bureaucrats on both sides. That one of those unions, the National Treasury Employees Association, should be headed by a rabidly anti-Tea Party former IRS agent should hardly be surprising. She adamantly opposes what she describes as “extreme” elements that favor cuts to the federal budget. She has made her role in the political process absolutely clear. When the new Republican Congress came to town, she had “news” for them: “While we will gladly work with anyone who will work with us, when we cannot we will go under, over, around or through those who will not work with us.”

Third, the reaction of the White House to the news was telling. The bad news, of course, was not that the IRS targeting of conservatives had occurred — after all, liberals had pushed for it — but rather that it had been discovered. The press had been conquered, but no one apparently thought about an inspector general. The White House staff was in a tough spot. They had to protect the integrity of the inspector general’s investigation, or else they might get into trouble themselves. No one wants to be a John Dean these days. So they decided to keep the president, whose job it is “to take care that the laws be faithfully executed,” in the dark.

In the Watergate scandal, a Republican senator asked the now famous questions “What did the president know, and when did he know it?” The purpose of the questions, of course, was to determine the extent of the executive branch’s complicity in misconduct. This time, things are different. The executive branch itself apparently committed the misconduct. So perhaps the right question this time is, “What did the president not know, and why did he not know it?” The answers to those questions would speak volumes about the nature of this scandal.

There is a vast difference between Watergate and this scandal. Forty years ago, what was described as a cancer on the presidency and government itself was limited to a president and a close circle of advisers and aides. Today, the cancer has metastasized. It pervades an increasingly intrusive government in its relentless pursuit of political and economic power. There are those who believe that a political party can preside over that process and still not be held accountable. That is why they will insist it is not as bad as Watergate, and that is precisely why they are so wrong.

Warren L. Dean Jr. practices law in Washington, D.C., and is an adjunct professor of law at Georgetown University Law Center.