The Demise of Public Discourse-Part II

(edited since first posting; in case you noticed and/or were wondering)

I'd almost forgotten about this:

The Internal Revenue Service has told a prominent Pasadena church that it has ended its lengthy investigation into a 2004 antiwar sermon, church leaders said Sunday.

But the agency wrote in its letter to All Saints Episcopal Church that officials still considered the sermon to have been illegal, prompting the church to seek clarification, a corrected record and an apology from the IRS, the church's rector told standing-room-only crowds of parishioners at Sunday's services.

The church also has asked the Treasury Department, which oversees the IRS, to investigate allegations that officials from the Justice Department had become involved in the matter, raising concerns that the investigation was politically motivated.

Part of the background of this case is summed up in a post I made earlier. But the allegations of political motivations don't come from idle bloggers like your humble host. They are prompted by e-mails obtained via an FOIA request made by the church. As the article points out that DOJ was involved in the case "before the IRS made any formal referral of it for possible prosecution." But there's more to it than that. A time line of the case, constructed from the documents at the church's website, (a convenient index of the documents is here)helps put this in perspective.

The IRS sent a "Notice of Tax Inquiry" on June 9, 2005. It's concerns were raised by an LATimes article about the Rev. George F. Regas, Pastor Emeritus of the church (p. 3 at the "index" link). The church responded on June 24, 2005 (p. 16 at "index"). The IRS responded on September 2, 2005, and submitted a "draft" Information Document Request ("IDR") as required by the Internal Revenue Code (pp. 21-23 at "index"). The IDR is where things get interesting, at least behind the scenes.

Starting at p. 50 here, you can read the IRS e-mails discussing DOJ interests/concerns with the case and with the IRD. The e-mails recognize the case is "sensitive," which is probably why DOJ was getting involved. It is clear from these e-mails that the IDR was being held up by DOJ review. However, whether that review was appropriate is an open question. Marcus Owens, "a former director of the IRS division that handles tax-exempt organizations," per the LATimes article, represented the Church in this matter and wrote to the IRS on March 29, 2006, (here, at p. 61). The LATimes article is coy:

One e-mail, for example, appears to show coordination between IRS and Justice Department officials about a request to the church for documents. Others discuss the timing of the request and news coverage about the case.

In fact, the first e-mail, on February 28, 2006, indicates no further contact will be made with the church until DOJ "is on board with it." On that same date (document at p. 52), the IRS procedure is "still on hold awaiting review and approval from DOJ as to their being willing to support and enforce the issuance of an IDR and probable summons." On July 7, 2006, another e-mail indicates that the IRS Chief Counsel is running the IRD past Justice and that they expect a response from Justice soon (p. 57).

Then, in an e-mail titled "Actions needed to be prepared for Justice response," dated July 18, 2006, another LATimes article with quotes from Marcus Owen is passed around for everyone to see (p. 58). Finally, on July 17, 2006, Justice has almost signed off on the IDR ("We are optimistic that they will have no technical concerns with the All Saints IDR so the goal is to be getting ourselves ready to issue that IDR.") (p. 59). That IDR was finally issued on July 24, 2006. The church objected to the breadth of the IDR (p. 14 at the "IDR" link), and other issues surrounding it, and requested the IRS issue an adminstrative summons so the church could challenge the procedures of the IRS in court. One problem with the IDR the letter noted is that it asked for "written or oral communications identifying one or more candidates." As Mr. Owens points out, prayers for the President are a regular part of Episcopal liturgy, which makes identifying such "oral communications" a bit onerous, at best.

The objection to the IRD led to a series of letters about the summons itself, and finally the IRS dropped the matter on September 10, 2007. Basically, without any information other than what the IRS received from the church on June 24, 2005, the IRS decided that "the church intervened in the 2004 Presidential election campaign. However, they decided it was a one-time occurrence, and the Church had policies in place to prevent such things from happening, and the IRS would not leave them alone with a warning to watch what they post on their website (No, I'm not kidding. Read the letter here, at p. 8. Mr Owens, the former IRS director of this deparment, smells a rat:

"In view of the fact that recent congressional inquiries have revealed extensive politicization of [the Department of Justice], my client is very concerned that the close coordination undertaken by the IRS allowed partisan political concerns to direct the course of the All Saints examination," attorney Marcus S. Owens wrote in a letter Friday requesting an investigation.

The problems this raises are not lost on the congregation members, either:

"It's so important for this church to be speaking truth to power, and I applaud that," said Sharon Fane of Burbank, who said she had joined All Saints largely because of its IRS battle. "But I have some fear for us too. What will this cost?"

The church's top lay leader, senior warden Rich Llewellyn, said the decision to push for answers from the IRS was clear, given the significance of the issues and the church's long history of social activism. "We really need clarity from the IRS," he said. "Otherwise, it's a very scary prospect to think that these agencies are looking over our shoulders at what our pastors can preach in church."

This is, let us not forget, the kind of thing that got Nixon in trouble. But then we had a Congress willing to investigate a sitting President and his abuses of power. Rep. Adam Schiff of Burbank tried to get an investigation of the IRS going in 2005, precisely because of cases like that of All Saints. Cases, let us note. He got nowhere. 2 years later we have a CYA letter from the IRS (you did something really bad, but we'll let you off this time), an Attorney General who abruptly resigns, a new Attorney General designate with the blessing of the Democrats who revels in the use of state power, and a church that could afford to stare down the IRS.

Does any of this add up to: "The system worked."?

Upon reflection, consider the facts here: this case was prompted by an article in the LATimes. Now, I could go into a pulpit this Sunday and preach a sermon denouncing George Bush as the anti-Christ and telling people to vote for Dennis Kucinich in the upcoming primaries, and no paper would take notice, much less the IRS. So there's an interesting selection process going on here: the IRS is only going to pick on prominent churches which are likely to be large enough, and wealthy enough, to defend themselves (most churches I've been in couldn't even afford the staff to post all those documents to the church website, much less get volunteers to do it). But did the IRS expect the church to back down? Apparently so, because after the church twice refused to comply with the administrative subpoena, and made clear its position that the issue was best presented to a court and that it would go there, the IRS decided: "Never mind." There is no way to read their final letter except as a CYA measure for something they knew they couldn't defend before a judge. So what is the lesson? That prominent "liberal" churches will be targeted? But if they are prominent and liberal, I assume they are ready to defend their rights under the First Amendment (which covers both freedom of speech and freedom of religion). What is clear, especially given the information that came out of the attorney firings scandal, is that this was politically motivated. It takes a determined naivete indeed, to think otherwise.

Now it will be interesting to see if any further investigation is prompted, or supported, by prominent California Democrats.