Topic category:  Corruption in Government

What is an experienced judge who happens to be black and also happens to have been appointed to his judgeships by Republican Presidents and a Republican Chief Justice of the United States to do when the Internal Revenue Service under the only black President of the United States may have illegally facilitated his reelection, an entity denied tax exempt status for years is alleging violations of the First Amendment, the Internal Revenue Code and the Administrative Procedure Act in a lawsuit pending before him and the defendants are asking for dismissal before discovery?

First, honor the judge's oath of office by "administer[ing] justice without respect to persons, and do[ing] equal right to the poor and to the rich, and...faithfully and impartially discharg[ing] and perform[ing] all the duties incumbent upon [a judge]...under the Constitution and laws of the United States. So help [that judge] God" (26 U.S.C. Section 453).

Second, read up on the impeachment count against the late President Richard Nixon involving alleged attempted misuse of the Internal Revenue Service for political purposes and accept it as conceivable that it might have been tried.

Third, don't let discovery be delayed until after Election Day 2014 (like approval of True the Vote's tax exempt status was delayed until after President Obama's second inauguration and a response to True the Vote's lawsuit was due).

Fourth, don't conclusively presume that President Obama told Fox News's Bill O'Reilly and the rest of the world the truth on February 2, 2013 when he said that there was "[n]ot a smidgeon of corruption" at the Internal Revenue Service (www.realclearpolitics.com/video/2014/02/02/obama_on_irs_scandal_not_even_a_smidgen_of_corruption.html).

Judge Reggie Walton of the United States District Court for the District of Columbia is presiding in True the Vote's case against the Internal Revenue Service, the United States of America and several persons who work or worked for the Internal Revenue Service.

Now 65, Judge Walton has been a judge most of his life. He served as an Associate Judge of the Superior Court of the District of Columbia from 1981 to 1989 after being appointed by President Reagan and again from 1991 to 2001 after being appointed by President George W. Bush. President Bush elevated him to the United States District Court for the District of Columbia in 2001 and Chief Justice John Roberts named him a judge of the Foreign Intelligence Surveillance Court, on which he served a term from 2001 until this year. Judge Walton presided in the federal prosecutions of I. Lewis "Scooter" Libby and Roger Clemens. In 2007, he sentenced Libby to be imprisoned for 30 months and to pay a $250,000 fine and denied Libby bail pending appeal. In 2011, he declared a mistrial after prosecutors showed the jurors evidence that he had ruled inadmissible. In 2007, in Hatfilll v. Ashcroft, he issued an order warning the plaintiff that his lawsuit over leaks could be dismissed if he did not compel journalists to name their sources.

On August 7, 2014, Judge Walton issued a 17-page decision denying True the Vote's Motion for Preliminary Injunction and Expedited Discovery to Prevent Further Spoliation of, and to Preserve and Restore, Evidence and Discoverable Information.

The Hill reported Judge Walton's decision this way (http://thehill.com/policy/finance/214645-judge-sides-with-irs-in-on-lerner-emails): "A federal judge on Thursday delivered an early setback to a conservative group’s lawsuit against the IRS, denying a request to allow an independent expert to search for former agency official Lois Lerner’s missing emails.

"Judge Reggie Walton of the U.S. District Court in Washington ruled that the conservative group, True the Vote, had provided no evidence that the IRS had already intentionally destroyed evidence or would do so in the future.

"He added that approving True the Vote’s request could jeopardize the confidentiality of taxpayer information, and complicate the efforts of an inspector general currently investigating what happened to Lerner’s emails.

“'The public interest weighs strongly against the type of injunctive relief the plaintiff seeks,' Walton, a George W. Bush nominee, wrote in his 17-page opinion filed Thursday.

Really?

Did the public interest weigh strongly in favor of Judge Walton having Hatfill compel journalists to name their sources, or was that seemingly the federal government's interest at the time?

The Wikipedia summary of the Hatfill case is illuminating (http://en.wikipedia.org/wiki/Steven_Hatfill#Hatfill_v._John_Ashcroft.2C_et_al.):

"On the 26th of August 2003, Hatfill filed a lawsuit against the Attorney General of the United States John Ashcroft, the United States Department of Justice, DOJ employees Timothy Beres and Daryl Darnell, the Federal Bureau of Investigation, FBI Supervisory Special Agent Van Harp and an unknown number of FBI agents.

"On March 30, 2007, US District Judge Reggie Walton issued an order warning Hatfill that he could lose his civil lawsuit over the leaks if he did not compel journalists to name their sources. He gave Hatfill until April 16 to decide whether to press the journalists to give up their sources.

"On April 16, Hatfill gave notice that he would 'proceed with discovery to attempt to obtain the identity of the alleged source or sources at the Department of Justice and the Federal Bureau of Investigation who allegedly provided information to news reporters concerning the criminal investigation of Dr. Hatfill.'

"On April 27, 2007, in the U.S. District Court for the District of Columbia, federal prosecutors wrote that Steven Hatfill had overstepped court orders allowing him to compel testimony from reporters whom he had already questioned and had instead 'served a new round of subpoenas' on organizations 'that he failed to question during the discovery period.'

"During the first round of depositions, Hatfill subpoenaed six reporters: Michael Isikoff and Daniel Klaidman of Newsweek, Brian Ross of ABC, Allan Lengel of The Washington Post, Jim Stewart of CBS, and Toni Locy of USA Today.

"Hatfill...subpoenaed eight news organizations, including three that he didn’t name before: The New York Times (Nicolas Kristof, David Johnson, William Broad, Kate Zernike, Judith Miller, Scott Shane, and Frank D. Roylance), The Baltimore Sun (Gretchen Parker and Curt Anderson), and the Associated Press. Subpoenas for Washington Post writers Marilyn W. Thompson, David Snyder, Guy Gugliotta, Tom Jackman, Dan Eggen and Carol D. Loenning, and for Mark Miller of Newsweek, [were] included.

"The Justice Department responded to Hatfill's subpoenas, saying that they went too far. 'The court should reject this attempt to expand discovery,' prosecutors wrote. In a status conference on Friday 11 January 2008, U.S. District Judge Reggie B. Walton ordered the attorneys for the government and for Hatfill to seek mediation over the next two months. According to the Scheduling Order, the parties will be in mediation from January 14 until May 14, 2008. The prospects of a mediated settlement notwithstanding, Walton said he expected that a trial on the lawsuit could begin in December. Afterward, Hatfill's attorney Mark A. Grannis said: 'The court has set a schedule for bringing this case to trial this year, and we're very pleased at the prospect that Dr. Hatfill will finally have his day in court.'

"On March 7, 2008, Toni Locy of USA Today was ordered to personally pay contempt of court fines of up to $5,000 a day which begin the following Tuesday, until she identifies her sources.

"On June 27, 2008 Hatfill was exonerated by the government and a settlement was announced in which the Justice Department...agreed to pay $4.6 million (consisting of $2.825 million in cash and an annuity paying $150,000 a year for 20 years) to settle the lawsuit in which Hatfill claimed the Justice Department violated his privacy rights by speaking with reporters about the case."

The Federal Government may not have acknowledged wrongdoing, but $4,600,000 isn't a nuisance settlement.

At the Constitution Convention on July 11, 1787, the Father of the Constitution, James Madison, wisely opined that "[a]ll men having power ought to be distrusted to a certain degree."

After presiding over the Clemens and Hatfill cases, Judge Walton should have developed a healthier distrust of the federal government, surely these days, yet he seemingly was satisfied that an Inspector General is now on the "lost" email case.

In addition, Judge Walton gratuitously mocked True the Vote's distrust in this overlooked excerpt from his lengthy opinion (available in full at www.scribd.com/doc/236169948/08-07-2014-Order-Denying-Preliminary-Injunction-and-Motion-for-Forensic-Investigation):

"...despite the general distrust of the defendants expressed by [True the Vote], the court has no factual basis to concur with that distrust, not only as to the defendants but seemingly every component of the Department of the Treasury (and presumably of every component of the Executive Branch of the federal government), and therefore concludes that the issuance of an injunction will not further aid in the recovery of the emails, if such recovery is possible, but will rather only duplicate and potentially interfere with ongoing investigative activities."

Really?

The presumption of regularity is "a principle applied in evidentiary evaluation that transactions made in the normal course of business are assumed to have been conducted in the usual manner unless there is evidence to prove otherwise" (http://definitions.uslegal.com/p/presumption-of-regularity/).

Lois Lerner's decision to plead the Fifth Amendment when called to testify before Congress should have made Judge Walton distrustful of the IRS position that there was no spoliation of evidence, and he should have taken judicial notice of it.

Isn't Judge Walton familiar with the ordeal of True the Vote founder and leader Catherine Engelbrecht since she founded True the Vote and applied for tax exempt status for it? (It's been in the news and even in a Fox News special.)

Isn't he familiar with the firing of former Inspector General Gerald Walpin soon after President Obama waas inaugurated?

Wikipedia summarized Engelbrecht's ordeal this way (http://en.wikipedia.org/wiki/True_the_Vote):

"In May 2013, it was revealed that True the Vote was one of the conservative groups subjected to additional scrutiny by the IRS in applying for tax-exempt status. True the Vote told Breitbart.com that new revelations that the IRS was discriminating in 2012 against conservative non-profits came as no shock to them. 'We applied for nonprofit C-3 status early in 2010,' said Catherine Engelbrecht, president of True the Vote, which has come under heavy assault from the Left for alleged voter suppression. 'Since that time the IRS has run us through a gauntlet of analysts and hundreds of questions over and over again. They've requested to see each and every tweet I've ever tweeted or Facebook post I've ever posted. They also asked to know every place I've ever spoken since our inception and to whom, and everywhere I intend to speak in the future. We've met all requirements, responded to everything, and provided case law in such areas where appropriate,' Engelbrecht stated. 'The IRS treatment of us lends to the appearance of a politically motivated abuse of power and an assault on free speech.'

"According to the National Review, since founding True the Vote, Engelbrecht and her husband say they and their business, Engelbrecht Manufacturing, have also been investigated by the FBI, ATF, and OSHA. Englebrecht says she 'absolutely' thinks she was targeted because she 'worked against voter fraud.'"

See Engelbrecht's Congressiona; testimony last February at www.youtube.com/watch?v=xxcMKtsm5BU and "The Catherine Engelbrecht story is the key to the IRS scandal" (www.renewamerica.com/columns/gaynor/140630).

Engelbrecht's distrust of the IRS, DOJ, FBI, BTAF and OSHA is readily understandable and something that should concern all persons who detest abuse of power.

Likewise, Walpin's story should distress all who count on Inspector Generals to set things right. After all, an Inspecttor General can lose his or her job that way and an appellate court will rule that that he or she didn't have "a clear and indisputable right" to it (http://talkingpointsmemo.com/muckraker/ex-americorps-ig-gerald-walpin-loses-appeal-in-wrongful-firing-suit).

See "Firing Inspector General Gerald Walpin for investigating sexual predator and Obama friend Sacramento Mayor Kevin Johnson" (http://conservativespotlight.com/2012/09/16/33-firing-inspector-general-gerald-walpin-for-investigating-sexual-predator-and-obama-friend-sacramento-mayor-kevin-johnson/):

"It didn’t take long for Obama to use the power of his office to benefit his crony friends. In June 2009 Inspector General Gerald Walpin was unceremoniously sacked by the White House because of his investigation of Sacramento Mayor Kevin Johnson, a retired NBA star and staunch Obama supporter. Walpin caught Johnson misusing an $850,000 AmeriCorps grant intended for St. HOPE Academy. Instead of using the funds to improve educational opportunities for the students, as required by the terms of the grant, money was instead redirected towards non-official business including influencing a Sacramento Board of Education election, padding staff salaries, washing Johnson’s car and running personal errands for the Mayor.

"Walpin’s investigation also uncovered allegations of sexual abuse by Johnson of three St. HOPE females. One student, who had been fondled by Johnson during a tutoring session at her home, told investigators that Johnson attorney Kevin Hiestand offered her a $1,000 a month AmeriCorps grant in exchange for her silence.

"The Office of Inspector General report contained information regarding 'two other female St. HOPE students reporting Johnson for inappropriate sexual conduct towards them.' Erik Jones, a teacher who had reported one of Johnson’s sexual assaults to police, wrote in his resignation letter 'St. HOPE sought to intimidate the student through an illegal interrogation and even had the audacity to ask me to change my story.'"

Nevertheless, we can pray that the inspector General on the 'lost" emails case will do the right thing.

We can also remind Judge Walton that the official motto of the United States is "In God we trust," not "In Federal Government, we trust." (The federal government is the worst form of government, except for all the others, and checks and balances must be meaningful, not pro forma.)

SURPRISE! The IRS delayed issuing True the Vote the tax exempt status it applied for in the summer of 2010 through the 2012 elections and beyond, and then only did so after True the Vote sued for it and related relief, obviously in order to try to moot the lawsuit now pending before Judge Walton and thereby avoid discovery.

The Executive Branch of the federal government doesn't want that discovery, but the People are entitled to know the truth.

Judge Walton denied True the Vote's motion for expedited discovery because the previously filed motion to dismiss was still pending before him and therefore discovery had not started. That motion to dismiss already should have been denied and should be denied without further delay, so that the discovery the federal government doesn't want and True the Vote and People need can begin. No more discovery delay in True the Vote's IRS Scandal lawsuit!

For those hoping for discovery in the case, there is a hopeful sign in Judge Walton's opinion. After stating that he "must deny the plaintiff's motion" for specified reasons, he went on to state that "as a result of the filing of this case, the defendants are now on notice of their obligation to preserve any potentially relevant evidence, and the Court instructs the defendants to comply with that obligation."

Why would Judge Walton explicitly so instruct the defendants if he was about to dismiss the case?

In 2012, after Muhammed Ali's 70th birhday, President Obama told him, "As a fighter, you were something spectacular. You shocked the world, and you inspired it, too. And even after all the titles and legendary bouts, you’re still doing it" (http://thegrio.com/2012/02/19/obama-to-muhammad-ali-you-shocked-the-world/).

Now it is Judge Walton who has a chance to "shock" the world and let discovery pursue the genesis of the idea that True the Vote's tax exempt status be delayed for years. After all, True the Vote was not considered insignificant when President Obama was running for reelection in 2012. In fact, the October 2012 Obama/Biden memorandum by former Obama White House Counsel Bob Bauer is readily available online at http://secure.assets.bostatic.com/pdfs/BauerMemo/BauerMemo.pdf and Bauer charged in that memorandum that there was a "Republican assault on voting rights....with deep roots in the party's history and politics" led by the Republican National Committee "aided by organizations closely associated with the party and its goals, such as True the Vote." According to Bauer, True the Vote was "assisting the effort [to disrupt] the voter registration process" by purporting to train and deploy to polling places around the country 'poll watchers' on the watch for 'fraud'...." Section IV of Bauer's memorandum, devoted to True the Vote, begins, "Since the 2010-midterm elections, Texas-based True the Vote (TTV) has been an outspoken member of the voter fraud community and is the social group focused on ending 'vote fraud.' It is the first group since the Karl Rove inspired American Center for Voting Rights was discovered to be a Republican front in 2007."

If that was true, then True the Vote should not have tax exempt status. But the Internal Revenue Service opted to give it tax exempt status in the hope of ending the lawsuit and thereby avoiding discovery. If people as high in the Obama Administration as Bauer believed what he was saying about True the Vote, did they seek to have the Internal Revenue Service delay the processing of True the Vote's application and make the process as onerous and expensive as possible?

Michael J. Gaynor

Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.