JW Beats IRS in Court
JUNE 12, 2015
Federal Court Orders Obama IRS: Answer JW on Lerner Emails
Judicial Watch Court Victory in Legal Fight over Hawaiian Racial Separatist Campaign
Supreme Court Agrees to Take Up Cases on Rule of Law and Your Right to Vote
Calling all conservative activists, citizens and groups who were silenced and harassed by the Obama Internal Revenue Service in the run-up to the 2012 elections and beyond — you should know that we have moved a few steps closer to holding the Obama administration accountable for its criminal misuse of the federal tax-collecting agency.
We are pleased to announce that Judge Emmet Sullivan of the U.S. District Court for the District of Columbia granted a Judicial Watch request to issue an order requiring the IRS to provide answers by June 12, 2015, on the status of the Lois Lerner emails the IRS had previously declared lost. Judicial Watch raised questions about the IRS’ handling of the missing emails issue in a June 2 court filing, demanding answers about Lois Lerner’s emails, which had been recovered from backup tapes. Judge Sullivan issued the court order on June 4, 2015.
In its June 2 filing, Judicial Watch detailed:
Because the emails recovered from the backup tapes are responsive to [Judicial Watch’s] FOIA request, [Judicial Watch] respectfully requests that the Court order the IRS to submit to the Court a report by June 12, 2015 addressing the status of the emails recovered by TIGTA. The report should include:
(a) clarification as to whether all emails that have been recovered by TIGTA have now been turned over to the IRS for review and processing in response to Plaintiff’s request, the volume of those emails, and the time frame in which the IRS anticipates completing its review and production of responsive emails, and
(b) clarification as to whether the processing is complete for all 1,268 backup tapes to determine what emails are recoverable, and if not, when the processing is expected to be complete.
Two days after Judicial Watch’s filing, Judge Sullivan issued the following order:
The IRS is directed to respond to [Judicial Watch’s] notice by no later than June 12, 2015.
Judicial Watch is seeking Lerner’s emails as part of its Freedom of Information litigation over the Obama IRS’ targeting of conservative political groups and citizens in the months leading up to President Obama’s reelection bid in 2012 (Judicial Watch, Inc. v. Internal Revenue Service (No. 1:13-cv-01559)).
On February 26, 2015, Treasury Inspector General for Tax Administration (TIGTA) officials testified to the House Oversight and Government Reform Committee that the oversight agency had received 744 backup tapes containing emails sent and received by Lerner. These tapes had been obtained one day after TIGTA requested that the IRS provide any backup tapes that contained records from Lerner’s email account. The IRS subsequently produced 424 additional backup tapes in February 2015. More than 32,000 emails from Lerner’s account were recovered from the initial 744 tapes; Judicial Watch is still seeking information regarding the contents of the additional 424 tapes.
Judicial Watch outlined the continuing IRS cover-up to Judge Sullivan:
The aforementioned testimony is uncontested that the recovered emails are from the email accounts of IRS officials, including Ms. Lerner, and cover the time period of (Judicial Watch’s) request. The testimony also is unequivocal that the IRS reported publicly that any backup tapes had been recycled and were no longer available without asking its technicians whether the tapes existed. [TIGTA Deputy Inspector General] Camus also testified that hard drives previously reported by the IRS to have been destroyed had not, in fact, been destroyed.
However, the IRS has yet to provide answers to Judicial Watch regarding the content of tapes it turned over to TIGTA, specifically “whether the emails are from all or only a subset of the 1,268 backup tapes located since July 1, 2014,” or whether additional emails remain to be recovered.
As the Obama State Department has argued with respect to Hillary Clinton’s hidden emails, the IRS has now argued that Lerner’s emails are no longer “IRS” records and it has no legal obligation to request them:
Agency counsel responded that the IRS is under no obligation to request copies of the emails recovered by TIGTA because they are allegedly not agency records. The IRS’s position is extraordinary considering that, not only are the backup tapes and emails obviously IRS records, but the Court went to great lengths to address the issue of the “missing” emails, including holding a status conference, ordering a meet and confer before a magistrate judge, and ordering the IRS to submit multiple declarations about its efforts to recover or locate the emails.
We can now say with certainty that the Obama IRS obstructed and lied to a federal judge and to our legal team in an effort to hide the truth about Lerner’s emails. The IRS, including its top political appointees, IRS Commissioner John Koskinen and General Counsel William J. Wilkins, has much to answer for over its contempt of court and of Congress. And the Department of Justice officials enabling this cover-up in court need to be held accountable, as well. The IRS is out of control and Judicial Watch is happy that Judge Sullivan has taken this key step to remind the agency that it is accountable to the rule of law and the American people.
The IRS response is due today. Typically, the Obama administration waits until late in the day, especially on Fridays, to release material that makes it look bad. I’ll report back to you next week on the IRS filing. In the meantime, you may want to ask your congressmen and senators why, for the most part, they sit on their hands on the Obama IRS abuses and cover-up while Judicial Watch does all the hard work.
Leftists, often abusing the power of government, seek to divide Americans by race. That’s certainly what’s happening out in Hawaii. But your JW is pushing back hard. And successfully.
Our lawyers earned a key court victory when the Circuit Court of the First Circuit, located in Honolulu, Hawaii, last week forced Hawaii’s Native Hawaiian Roll Commission (NHRC) and its Executive Director, Clyde W. Namuo, to release records regarding the enrollment list of “native” Hawaiians created pursuant to the “Kana’iolowalu,” the NHRC’s controversial racial registration campaign. Our team filed an “Application for an Order Allowing Inspection of Public Records” in February 2015 against the Roll Commission to obtain records regarding the campaign. (This legal action is the Hawaii legal equivalent of a freedom of information lawsuit.) The Grassroot Institute of Hawaii, a Hawaii-based think tank, partnered with Judicial Watch on this investigation.
In response and over the objections of the Commission, the court ruled that the enrollment list was a public record and that the government agency had come up with no good reason for withholding it from Judicial Watch. The judge ordered its release on a schedule to be approved in the next few days, and stressed that Hawaii’s open records laws were designed to foster wide and open discussion of matters of public importance.
Judicial Watch had argued that citizens were entitled to see the records, especially if their names happened to be on the lists without their knowledge.
A little background is in order here.
On July 20, 2012, using taxpayer funds from the state’s Office of Hawaiian Affairs, the NHRC launched the Kana’iolowalu campaign, opening a registration process for Native Hawaiians who desired to vote for a new race-based sovereign government.
When the registration process closed in January 2014 – after a long and expensive marketing effort – only 40,000 “Native” Hawaiians had registered.
The Native Hawaiian Roll Commission then reopened registration in March and again in August of 2014. During this period, another taxpayer-funded agency, the state Office of Hawaiian Affairs, transferred government lists of “Native Hawaiians” who had previously registered their “ancestry” with the state agency to the Kana’iolowalu campaign. At least 87,000 names were transferred to bolster the Roll Commission’s enrollment list. Individuals who object to being added to the race-based voter roll without their permission must file a form to have their names removed. You can see how this is quite the racket for the racial separatist movement in Hawaii. They didn’t have enough names, so they improperly took the names from a government agency without the permission of citizens, and now make it cumbersome to remove one’s name!
This race-based enrollment list was created under Act 195, the 2011 Hawaii law that authorizes the Roll Commission to create a list of “Native Hawaiians” who would be eligible to vote on issues concerning the sovereignty of the “Native Hawaiian people.” Act 195 defines a “Native Hawaiian” as any person whom the government determines to be a direct descendant of the state’s aboriginal peoples. A person may register for the Kana’iolowalu if, besides meeting the law’s racial requirements, that individual has “maintained a significant cultural, social, or civic connection to the Native Hawaiian community” and “wishes to participate” in organizing an anticipated “Native Hawaiian governing entity.”
The Roll Commission defines Kana’iolowalu using magical Marxist revolutionary language that is almost immune to rational analysis. It is defined as “the din that is being created by the mass of people who are coming together and moving forward to strive and achieve and recognize the unrelinquished sovereignty of the Native Hawaiian people …”
Racial classifications designed to allocate political power and government benefits are profoundly offensive and illegal. But now, even worse, we see an attempt to unlawfully use Hawaiian citizens’ names, without their consent, to create those classifications. The court’s decision to order the release of this list will help us uncover fraud and abuse in this deplorable, taxpayer-funded scheme to divide Hawaii by race.
In light of this court victory, it is worth recalling that the Roll Commission was particularly mendacious in not responding to our lawful document requests. On August 8, 2014, after the Commission’s “roll” reportedly exceeded 125,000 registrants, Judicial Watch requested “the complete enrollment list of Native Hawaiians, known as the Kana’iolowalu.” But on September 4, Clyde Namuo, on behalf of the Roll Commission, refused to produce the list, claiming that the government agency’s work “is continuing and the complete enrollment list of Native Hawaiians you requested does not exist at this time.”
Your JW is not one to give up or yield to this type of bureaucratic nonsense. So on September 5, 2014, we rephrased our request to ask for copies of the “enrollment list of Native Hawaiians, known as the Kana’iolowalu, as it existed at any one point in time following your receipt of this request.” It also asked for copies of “all documents discussing the decision to reopen, in or August 2014, registration for the Kana’iolowalu.” On September 25, 2014, Namuo again refused production of the requested documents on the grounds that “our registration work is ongoing and a certified enrollment list of Native Hawaiians does not exist at this time,” and that “Kana’iolowalu have never ceased” and “there is no need for documentation to administratively reopen the registration roll.”
You can see why we had to go to court to get this information.
You won’t be surprised to learn that the Obama gang is happily supporting the racial separatist movement in Hawaii. The Obama administration has been rightly criticized for taking executive action towards “the reestablishment of a government-to-government relationship with the Native Hawaiian community.” If you are a patriot citizen in Hawaii, you should be worrying that your state and federal governments are conspiring against you, as the long-term goal of this crowd is to secede from the United States.
Our Grassroot Institute of Hawaii friends are also on the front-lines and are grateful for this JW court victory. “With the release of the Roll, it will now be possible to answer concerns over the tens of thousands of names that have been placed on the list without the express permission of individuals,” said Grassroot Institute President Keli’i Akina. “The fact stands that the vast majority of Hawaiians have chosen not to support the efforts of the Office of Hawaiian Affairs and the Native Hawaiian Roll to create a sovereign government. Their voices can now be heard. And, hopefully, the Office of Hawaiian Affairs will stop wasting public money on its unconstitutional push for sovereignty and, instead, spend it on housing, education, employment, and health services for those in need.”
Judicial Watch is represented in this litigation by former Hawaii Attorney General Michael Lilly of the Honolulu law firm Ning, Lilly & Jones.
Someone has to confront politicians who illegally carve out gerrymandered districts to perpetuate their time in office. This is something that your Judicial Watch is happy to do.
I have good news to report to you about two cases that the Supreme Court will hear that may vindicate the rule of law but also protect your right to vote.
First, I am pleased to report that the Supreme Court granted certiorari and will review the claims of the plaintiffs in Shapiro et al. v. Mack et al., who had challenged Maryland’s 2011 legislative redistricting plan on the grounds that it violates the voting rights of Maryland citizens through creation of unreasonably gerrymandered districts. Their case was short-circuited by the Fourth Circuit Court of Appeals, which dismissed the lawsuit through a process that violates the Three-Judge Court Act by allowing a single judge to rule on this gerrymandering challenge. Judicial Watch was the only party to file an amicus brief in this case.
The Three-Judge Court Act requires that three-judge panels must hear all constitutional challenges to legislative redistricting unless, according to past Supreme Court rulings, the case is “obviously frivolous,” “essentially fictitious,” “wholly insubstantial” or “obviously without merit.” In 2003, the Fourth Circuit Court departed from this precedent, determining that a single judge could decide not to convene a three-judge panel if he determined the case was not “plausible.” The Fourth Circuit applied the same standard in its 2014 ruling against plaintiffs Shapiro, Benisek and Pycha.
The events in Maryland make it painfully clear that unelected judges and power-hungry politicians are out to undermine the rights of average citizens while gutting the rule of law.
The highest court in the land can now send out a powerful message that says “No one is above the law, not even the federal courts.”
The Maryland maps are cynical and insulting to the republican ideals of the nation. Even the liberals of the Washington Post were scandalized: “The map…mocks the idea that voting districts should be compact or easily navigable. The eight districts respect neither jurisdictional boundaries nor communities of interest. To protect incumbents and for partisan advantage, the map has been sliced, diced, shuffled and shattered, making districts resemble studies in cubism.”
Our amicus brief argued (successfully!) that the Fourth Circuit decision “raises an important issue of federal election law that should be heard by this Court” and detailed JW’s legal efforts on the Maryland gerrymandering issue:
In particular, Judicial Watch is concerned that the Fourth Circuit’s ruling violates the Three-Judge Court Act and will allow states to delay judicial review of gerrymandered redistricting plans that disenfranchise voters and violate the Constitution. Judicial Watch has represented parties in two recent cases [here and here for more info.] in Maryland concerning a ballot referendum on the state’s gerrymandered redistricting plan. Moreover, Judicial Watch may wish to be involved in challenges to gerrymandering on behalf of members or clients in the future, and believes the federal judiciary should not be erecting further obstacles to review.
Thankfully, the Supreme Court has guaranteed that Maryland’s citizens will, at the least, get a fair hearing based on the law. For more than 40 years, Congress and the courts have recognized the importance of voters’ ability to challenge how a state draws congressional and state legislative districts. The Fourth Circuit, however, has limited voters’ power to challenge redistricting laws. The decision by the Supreme Court is a step toward checking judicial legislating and protecting the right to vote. We are grateful to attorneys Meir Feder and Rajeev Muttreja of the Jones Day law firm, who prepared and filed this amicus brief on Judicial Watch’s behalf.
Another redistricting case out of Texas also came out in our favor. Back in March, we joined with our frequent amicus partner, the Allied Educational Foundation (AEF), to file a brief in support of Sue Evenwel, a Texas resident who filed a lawsuit to overturn a Texas “malapportionment” law (Sue Evenwel, et al. v. Greg Abbott, et al. (No 14-940)).
The law, passed in 2013, drew up districts for the Texas state senate based on total population rather than the number of eligible voters, giving voters in districts with large numbers of non-voting-eligible aliens disproportionate power compared to voters in districts with higher numbers of legal residents. This policy has resulted in some Texas voters effectively gaining more voting power than Texans in different districts, with the Texas redistricting giving “some of its citizens approximately 1.8 votes while [leaving] others [with] only 1 vote.” And, by the way, this law was the result of Republican machinations!
As a result, the high numbers of non-voting-eligible immigrants – whether legal or illegal – in Texas’ urban centers substantially inflated the voting power of the lesser number of eligible voters who also reside in those districts. The situation is particularly acute in urban areas like Dallas and Houston, where up to 50 percent of voting-age Hispanics are not currently U.S. citizens. The Evenwel plaintiffs challenged the constitutionality of this scheme, but were unable to convince the lower courts. So they went to the Supreme Court with the support of JW and AEF. Thankfully, the Supreme Court agreed to take up the case, noting that it had “probable jurisdiction” (which is another method under which the Court can fully review a case).
We are pleased to be once again on the right side of the argument, because the issues are important. As we noted in our brief:
Texas is devaluing the votes of certain of its citizens by improperly including noncitizen nonvoters when determining the “equal population” of legislative districts. Under federal law and the laws of all 50 states, only citizens may vote in federal elections. Texas’ scheme to give weight to nonvoting noncitizens along with lawful voters is contrary to the principles embodied in citizen voting laws.
You can learn more about the issue here. This case has national implications. Citing the extraordinary fact that the non-citizen population in the United States has doubled since 1990, our JW/AEF brief requests the Supreme Court finally settle the issue of whether the U.S. Constitution requires that non-citizens be counted when setting up voting districts:
Out of a total 2012 population of 311 million… roughly 7 percent of the modern U.S. population lacks citizenship – or about 1 in 14 people … Accordingly, the opportunity for legislators to resort to the tactical use of non-citizen populations to dilute the voting power of citizens is greater than ever.
As you can imagine, some of the Left are surprised and apoplectic that the Court might question the constitutional propriety of allowing tens of millions of foreign nationals, many here illegally, to be used to dilute the voting power of American citizens. As a liberal Supreme Court watcher at the New York Times notes, the Evenwel case “looms so far as the dominant case of the court’s next term.”
These two new Supreme Court cases are “looming,” in part, because of the tenacity and legal leadership of your Judicial Watch. You can be sure that now they are before the Court, your Judicial Watch will continue to give you a voice as the justices consider the cases next term.
Until next week…