I posted something last night without comment, and in the morning, it's obvious what I failed to say.

Here's what I just added to last night's "Another scary day..." (which embedded a Scott Adams tweet, "It’s another scary day for the people who can’t tell when President Trump is joking" about the serious handwringing over Trump's adoption of the word "treasonous" to describe Democrats who didn't applaud during his State of the Union Address):

It can be scary even when you recognize that he was joking. He's President and in the position of enforcing the law, and from that position punching down. He really should not be joking about treason. And I get that he's punching back, and that's his style. But people aren't just idiots if they feel afraid of a President who isn't continually assuring us that he's aware of his profound responsibilities.

Wasn't this scary — even though you know it's a joke?



And — in a would-be President — this:



IN THE COMMENTS: Matthew Sablan said:

I thought it was bad form to joke about auditing your enemies too. But for the most part, no one really cared. Even when Obama's enemies started getting audited. I still think it is bad form to joke about treason, but Trump has never been one to hold himself to rules his opponents won't follow.

I cared about Obama's joke. It was terrible, despicable, and I would have been outraged by the joke on top of the joke It’s another scary day for the people who can’t tell when President Obama is joking.

Here's the video of Obama making the joke to cheers and laughter at Arizona State University in 2009.

ADDED: It's clear to me that Obama must have thought the joke was good because it's making fun of the overstatements of his critics. They are ridiculous to accuse him the way they do, so his talking like them is funny.

Just as the Democratic commentator is saying Republicans can only win through voter suppression, she's radically undercut by the crawl at the bottom of the screen.

A commentator on "State of the Union" this morning — Baltimore mayor Stephanie Rawlings — asserts that voter suppression is "the only way Republicans win" just as the crawl across the bottom of the screen says: "Federal appeals court reinstates lawsuit against IRS says agency needs to prove it's no longer discriminating conservative groups. Court rules conservative groups who brought 2013 lawsuit were 'subjected to extended delay' when applying for tax-exempt status with IRS. Court says 'it is absurd' to suggest unlawful delays by IRS have completely ended, considering two of the plaintiff groups still have tax-exempt applications pending...."

"The Justice Department notified members of Congress that it is closing its two-year investigation into whether the IRS improperly targeted tea party and other conservative groups."

"There will be no charges against former IRS official Lois Lerner or anyone else at the agency, the Justice Department said in a letter."

The probe found "substantial evidence of mismanagement, poor judgment and institutional inertia leading to the belief by many tax-exempt applicants that the IRS targeted them based on their political viewpoints. But poor management is not a crime. We found no evidence that any IRS official acted based on political, discriminatory, corrupt, or other inappropriate motives that would support a criminal prosecution," Assistant Attorney General Peter Kadzik said in the letter. "We also found no evidence that any official involved in the handling of tax-exempt applications or IRS leadership attempted to obstruct justice. Based on the evidence developed in this investigation and the recommendation of experienced career prosecutors and supervising attorneys at the department, we are closing our investigation and will not seek any criminal charges."

"They called me back to testify on the IRS ‘scandal,’ and I too[k] the 5th again because they had been so evil and dishonest in my lawyer’s dealings with them."

Said Lois Lerner, in email.

"Wisconsin’s Friend at the IRS/Emails show a common cause in restricting political speech."

A Wall Street Journal editorial (Google some text to get your own link if that doesn't work for you). Excerpt:

Former IRS tax-exempt director Lois Lerner ran the [IRS]’s policy on conservative groups. Kevin Kennedy runs the Wisconsin Government Accountability Board (GAB) that helped prosecutors with their secret John Doe investigation of conservative groups after the 2011 and 2012 recall elections of Governor Scott Walker and state senators.

Emails we’ve seen show that between 2011 and 2013 the two were in contact on multiple occasions, sharing articles on topics including greater donor disclosure and Wisconsin’s recall elections. The emails indicate the two were also personal friends who met for dinner and kept in professional touch. “Are you available for the 25th?” Ms. Lerner wrote in January 2012. “If so, perhaps we could work two nights in a row.”...

Sources tell us that in 2012 and 2013 John Doe investigators asked the IRS to look into a conservative group that was among the primary targets of the Wisconsin Doe investigation. The IRS doesn’t appear to have followed up, but the request shows Wisconsin prosecutors saw their pursuit of independent groups as part of a common agenda with national Democrats....

How to get the ebola-panic working for your side.

Here's an effort by the Agenda Project Action Fund (famous for "Granny Off the Cliff") attempting to crank up the fear and get it to go this way:



Meanwhile, other Democratic Party voices are saying calm down, we know how to control outbreaks, and fear is unhelpful, a problem in itself. The cynical among us assume that politicos tell us to fear when they think they can manipulate our fear to serve their interests. With this new ad, the Agenda Project shows it believes it can work fear effectively, so it invites panic. But it's stepping all over the dominant message from the President's party, which is anti-fear. This fear/don't fear message is confusing. It's like: Don't fear, but if you do fear, blame Republicans for whatever is scaring you. And yet, if confusing people were thought to be a good move, it would be made, would it not? The lofty voices in the party say don't fear, we know how to handle this, and we are diligently on duty, while the fringe groups crank out viral paranoia.

IN THE COMMENTS: Ignorance is Bliss said:

The Agenda Project Action Fund has received official IRS recognition of its tax exempt status under sections 501(c)(4) of the Internal Revenue Code.

Good thing the IRS has been keeping a close eye on the tea party groups, otherwise a tax-exempt non-profit might engage in politics.

The Mistrust List.

Interviewing Dan Pfeiffer (senior Obama adviser) on "Meet the Press" this morning, Chuck Todd put up what I'll call The Mistrust List:

I think one of your challenges though is a trust deficit that has been created over the last 18 months. I want to put up a graphic, whether you believe it's fair or not, it is a fact about all the different sort of government gaps over the last 18 months.

The heading on the graphic was "Trust in Government?" And it had the following bullet points, which I'm displaying here as Todd read them (with all the items, but some extra words):

• Edward Snowden stealing NSA files
• The VA fakes wait times
• IRS losing emails
• Healthcare.gov doesn't launch
• The president himself saying, "U.S. intelligence agencies underestimated ISIS."
• The DHS, the border failure with that surge over the summer, sort of failure, and of course...
• The Secret Service. 

Why should we trust that what you're saying about the CDC is able to handle [ebola]? You understand why there's more skepticism than normal.

On "Fox News Sunday," Chris Wallace teased his panel discussion in a similar (if less hard-hitting) way, premising a question about trust with a list of reasons for mistrust:

[W]ith growing concerns over Ebola, the Secret Service and the VA and IRS scandals, can we trust the federal government to do its job?

Unlike Dan Pfeiffer who could only lamely assert that when there's a problem "we deal with it," George Will was particularly good at leveraging himself off the Mistrust List. I mean, Will was so good that I suspect the teaser was designed to go with the material he had prepared. From the transcript (with emphasis and punctuation added based on the audio):

"Lois Lerner is toxic — and she knows it. But she refuses to recede into anonymity..."

"... or beg for forgiveness for her role in the IRS tea party-targeting scandal."

“I didn’t do anything wrong,” Lerner said in her first press interview since the scandal broke 16 months ago. “I’m proud of my career and the job I did for this country.

"An aide to Eric Holder, who thought he was calling Democratic congressman Elijah Cummings’ office for help on leaking documents to selected reporters..."

"... accidentally spilled the beans of the latest IRS spin job because he called House Oversight Committee Chairman Darrell Issa’s office instead."

Leave John Koskinen alone!

He's trying to work!

The Freedom From Religion Foundation settles with the IRS about investigating tax-exempt religious groups that get involved in politics.

AP reports:

"This is a victory, and we're pleased with this development in which the IRS has proved to our satisfaction that it now has in place a protocol to enforce its own anti-electioneering provisions," said [Freedom From Religion] co-president Annie Laurie Gaylor....

The FFRF argued that churches and other religious organizations have become increasingly more involved in political campaigns, "blatantly and deliberately flaunting the electioneering restrictions."

("Flaunting." Somebody — AP or FFRF — made the old flouting/flaunting mistake.)

Anyway, the point is — as we know from the big IRS scandal about Tea Party groups — if a group is too political, it doesn't qualify for a tax exemption. The same degree of enforcement should apply to all groups who seek tax-exempt status, whether they are conservative or liberal and whether they are religious or secular.

The IRS had said publicly in 2012 that it was not investigating complaints of partisan political activity by churches, leaving religious groups who make direct or thinly veiled endorsements of political candidates unchallenged.

Perhaps you think religious organizations should get special treatment from the IRS or, at least, you may not be comfortable with this issue getting resolved in a settlement between the IRS and the Freedom From Religion Foundation. I prefer applying the same rules to everyone and not giving special deference to religious groups, but the Religious Freedom Restoration Action requires the federal government to justify substantial burdens on religion with a compelling interest and narrow tailoring, as we saw in the Hobby Lobby case.

You can't expect the Freedom From Religion Foundation to push that point, however, and nothing about this settlement prevents other parties from raising that question in their own lawsuits. In any event, the IRS has a moratorium on investigations right now, but it will be interesting to see what happens in the future with this FFRF-satisfying "protocol" if some church that's used to telling its parishioners how to vote gets surprised by a deprivation of its tax-exempt status.

NYT reports: "The Internal Revenue Service did not follow the law..."

"... when it failed to report a hard drive crash that destroyed emails belonging to a senior official at the center of a scandal over the agency’s treatment of conservative-leaning political groups, the nation’s top archivist said Tuesday."

Lawprof Jonathan Turley ties together the Redskins decision, the IRS denying tax exemptions, and the FEC deciding what counts as "electioneering."

This is an excellent column that goes way beyond what's suggested by the headline, "The patent office goes out of bounds in Redskins trademark case." Here's where he ends up:

When agencies engage in content-based speech regulation, it’s more than the usual issue of “mission creep.” ... [A]gencies now represent something like a fourth branch in our government — an array of departments and offices that exercise responsibilities once dedicated exclusively to the judicial and legislative branches....

What is needed is a new law returning these agencies to their core regulatory responsibilities and requiring speech neutrality in enforcement. We do not need faceless federal officials to become arbiters of our social controversies. There are valid objections to the Redskins name, but it is a public controversy that demands a public resolution, not a bureaucratic one.

Read the whole thing.

"You ask taxpayers to hang on to seven years of their personal tax information in case they’re ever audited, and you can’t keep six months’ worth of employee emails?"

Said Paul Ryan, in what the NYT is characterizing as a "shouting match":

"Sitting here listening to this testimony, I don’t believe it,” Representative Paul D. Ryan, Republican of Wisconsin, told the commissioner, John Koskinen, at a hearing of the Ways and Means Committee. “That’s your problem. No one believes you.”

Video:

In the context of the (arguably) destroyed IRS email, let's revisit an old question: Why didn't Richard Nixon destroy the Watergate tapes?

I've taught the Watergate Tapes case — United States v. Nixon — for 20 years, and I think I always include what I believe is a central question about that case and about law more generally: Why didn't Richard Nixon destroy the Watergate tapes?

Nixon had possession of the tapes, and no physical force prevented his people from starting an "accidental" fire or causing a chance encounter with magnets... Yeah, bitch, magnets....



Here's the description in the book "The Brethren" of how Nixon reacted to the news of the Supreme Court's decision:

His Chief of Staff, Alexander M. Haig, told him that the Supreme Court decision had just come down. Nixon had seriously contemplated not complying if he lost, or merely turning over excerpts of the tapes or edited transcripts. He had counted on there being some exception for national security matters, and at least one dissent. He had hoped there would be some “air” in the opinion. 

“Unanimous?” Nixon guessed.

“Unanimous,” Haig said. “There is no air in it at all.”

“None at all?” Nixon asked.

“It’s tight as a drum.”

After a few hours spent complaining to his aides about the Court and the Justices, Nixon decided that he had no choice but to comply. Seventeen days later, he resigned.

So, why didn't Richard Nixon destroy the Watergate tapes? 3 ideas for an answer:

1. Nixon was part of the American culture of the rule of law that had grown and deepened over the years. We were long past the days when Andrew Jackson (supposedly) said: "John Marshall has made his decision; now let him enforce it!" This is the answer I've always liked, and I can see that if I like it too much I'm falling prey to the age-old human foible of believing what you want to believe.

2. Nixon knew that if he said the tapes were destroyed, no one would accept any attempt to explain it away as a mishap, and he'd be impeached forthwith. It was nothing other than the best self-serving political move he could make at that point.

3. Nixon was, in fact, a fool not to destroy the tapes.

"I had bad advice, bad advice from well-intentioned lawyers who had sort of a cockeyed notion that I would be destroying evidence," Nixon said years later in a videotaped interview. "I should have destroyed them."

Let's compare the IRS email story. There are some differences:

1. Nixon was more hated and people weren't apt to cut him any slack, and Obama, whatever he does, is relentlessly liked.

2. The press was bearing down hard on Nixon — "They're after me! The president. They hate my guts. That's what they're after." — and the press is ever ready to give Obama a boost.

3. Nixon seemed tricky and shifty, unlike Obama, whose lies seem less... lie-like.

4. Tapes are bigger, bulkier objects, and email is evanescent.

5. Nixon, actually, at some level, felt shame about transgressing what another branch of government says is the law, and Obama has great confidence in asserting his view of the law and sticking to it. 

6. The Watergate scandal was about unlawful actions intended to help reelect the President, and... oh, wait... that's not a difference.

I thought of a clever argument that could be used to sell the story that some computer snafu ate all that Lois Lerner email.

It seems as though no one — not even the administration's fans in the mainstream media — accepts the explanation, which demands that we believe that the IRS's approach to handling email was mind-bogglingly incompetent.

Here's my idea for an argument: Call attention to the big screw-up with the Obamacare website. You wouldn't have believed that a computer system that big, that important, and that well-funded would be so abysmally bad, but we know it was.

Think about it. If you hadn't yet seen that atrocious roll out of the Obamacare website, and you heard a prediction of what it would be like — and that prediction was what we now know happened — you would have said: That's ridiculous! It cannot be that bad.

It was that bad!

Okay. That's my free advice to IRS-scandal fighters. Go ahead and use it. And feel free to use the larger version of this argument whenever you get in trouble: We're not evil. We're just terribly incompetent.

ADDED: Today, there are new claims that of computer crashes destroying more email from additional IRS investigation targets.

"Did The IRS Really Lose Lois Lerner's Emails? Let a Special Prosecutor Find Them."

That headline — at the National Journal — says exactly what needs to be said.

For decades the received wisdom has been it's not the crime, it's the coverup. And here we see evidence of a coverup. What kind of crime must there be that after all these years of warnings that it's the coverup that will get you, we've got a glaring, egregious coverup?!

Oh? Do they say maybe it's not a coverup? Maybe Lois Lerner's emails really did disappear in a computer crash? We need a neutral prosecutor to find out what happened. There's zero reason to take that on faith.

How could it possibly be that government operates this way, with high-level government officials working with one computer that could crash and take everything with it? Aren't there central computers, backed up multiple times, with a record of everything?

We're talking about the IRS. Doesn't it have multiple, backed up records on all of us taxpayers?

Give us a special prosecutor, because it's not acceptable to tell us we're supposed to believe this story of disappearing evidence....

"The Obama administration hasn’t been distinguished by cool, cerebral, sure-footed professionalism, but by something closer to amateur hour."

"From the botched rollout of the Affordable Care Act to the bloody aftermath of the intervention in Libya, from enabling political witch-hunts at the IRS to being repeatedly outmaneuvered by Russia’s Vladimir Putin, from swelling the debt he was going to reduce to embittering the politics he promised to detoxify, Obama’s performance has been a lurching series of screw-ups and disappointments."

From "Obama fails to show his vaunted ‘competence,'" by Jeff Jacoby in The Boston Globe.

3 Pinocchios to Harry Reid's claim that the Koch brothers are "one of the main causes" of climate change.

Why only 3 and not the maximum of 4? Glenn Kessler explains:

Certainly, Koch Industries contributes to climate change, but the relative impact falls well short of being a “major cause.” We understand Reid’s overall point, but it’s important to stick to the facts when making such claims. Given that Reid did not accurately describe the U-Mass. report, our rating on this statement tips toward Three Pinocchios.

Paraphrase: An old politico with his heart in the right place is entitled to a little hyperbole.

I don't agree with that statement, by the way. That's just my translation of Kessler's analysis. What I think is that those who've got their hands on government power should never evince partisan hostility toward private citizens. They should always take pains to appear neutral toward the people they are in a position to harass, and shame on them when they don't.

Writing that made me look up Obama's speech from last weekend's White House Correspondents Dinner, because I remember that he mentioned the Koch Brothers and my reaction was outrage, expressed (out loud) in just about the words you see in the previous 2 sentences. Looking at the text of the speech, I see the precise words were:

And speaking of conservative heroes, the Koch brothers bought a table here tonight. But as usual, they used a shadowy right-wing organization as a front.  Hello, Fox News.  (Laughter and applause.)

Doesn't that seem rather mild? Was I unduly cantankerous late at night, listening for trouble? Or was I right to be outraged? This is the President of the United States, in a position to impose endless anguish on the citizens whose names he called out. He sounds good humored, as though we're supposed to somehow believe that he'd never do any mischief, but look at the IRS scandal, and remember that Obama joked about auditing his enemies.

At CBS DC right now, surprising results of a sidebar poll about Donald Sterling.

Perhaps the poll appears other places as well, but in any case, I think this response is very different from what the media wanted to make people think:



I happened to notice the poll because I'd clicked to the article "US Attorney To Oversee Lerner Contempt Case Appointed By Obama." Feel free to discuss that topic as well. I hope 2 completely different topics doesn't produce chaos in the topics. I'm not going to perform any these-topics-actually-are-related theater for you.

Have at it.