Monday, June 9, 2014

NOM tries to turn IRS case loss into a huge victory

April, 2012: “HRC President & Obama Co-Chair Implicated in IRS Leak Scandal.” That was the title of a piece on the blog of the very paranoid (or very cynical) National Organization for Marriage dated April 12, 2012. NOM's diatribe consumed 2,141 words to describe the dastardly deed. The themes would be repeated day after day, ad nauseum. NOM was in the deep end of a political scandal. There never was a scandal and that accusation turned out to be rubbish.

18 months later, when NOM filed suit against the IRS, John Eastman, NOM's chairman, claimed “They [the Human Rights Campaign] wanted access to NOM's confidential list of donors, lists that NOM is required to file with the IRS but are not public information.” Again, the notion that this had anything to do with HRC was, well, more rubbish. At this point we can call it by its proper polite name; bullshit.

In the same blog post, Brian Brown chimed in with more bullshit:

“Magically, soon after their president was named a national Co-Chair of the Obama Releection <sic> campaign, the HRC got what they wanted. It's an established fact that the information originated with the IRS.”

But of course, it was all a plot carried out by HRC in conjunction with President Obama and his re-election campaign. And the purpose was to embarrass Mitt Romney by revealing that one of his distant PACs gave a $10,000 donation to the Proposition 8 campaign. Most of us never did understand how or why that would embarrass multiple Mitt. The astonishing thing is just how many people believed all this nonsense, or at least claimed to believe it. Brown usually believes his own BS.

Today, eight months after filing suit, NOM claims victory in an email blast:
First, the IRS news you've been waiting to hear — they finally admitted we were right and they were wrong! This week the IRS was forced to admit that they were the ones who unlawfully released our confidential donor information to a gay activist who promptly gave it to our political opponents, and opponents of marriage, the Human Rights Campaign. As our chairman John Eastman said,
When we began this process, the government denied the IRS had engaged in any wrongdoing and suggested that NOM itself must have released its confidential list of donors to our political opponents, the Human+ Rights Campaign (HRC). Now the government has been forced to admit that the IRS was responsible for disclosing confidential tax information and the private identity of our donors. We are looking forward to holding them accountable in court for the damages they have inflicted upon us.
Not exactly.

First off, NOM has apparently known the truth for some time. In January of 2012, a guy by the name of Andrew Meisel* requested 2007 and 2008 returns from the IRS. Later in the month, a clerk at the IRS named Wendy Peters provided Meisel with the requested information. Peters simply forgot to redact the donor information. She made a clerical error.

As Judge Cacheris notes, “The evidence is unrefuted that Peters did not know Meisel or have any connection to the HRC when she disclosed the information.” So much for a conspiracy.

Not to cast doubt on Mr. Eastman's honesty but I am unaware of any statement made by the IRS regarding this matter. More importantly there was no wrongdoing. A low-level employee made a clerical error.

Two months later, in March of 2012, Meisel contacted Kevin Nix at HRC and asked if they (HRC) would be interested in seeing the documents. HRC forwarded the material to the Huffington Post and the rest is history.

A federal judge has now ruled:
  1. That the disclosure was not willful. “In short, NOM’s allegations of willfulness are unsupported by any evidence and thus insufficient.”
  2. This did not constitute gross negligence. “The record is equally deficient concerning NOM’s assertion of gross negligence.”
  3. There are no punitive damages to be awarded. “NOM has made no showing from which a reasonable jury could find that the disclosure of its Schedule B was the result of willfulness or gross negligence.”
  4. There is no cause of action for having tax returns unlawfully inspected by government employees. “because there is no evidence before the Court upon which NOM could prevail, the Court will dismiss its unlawful inspection claims.”

So where does that leave NOM? The matter going to trial is the amount of actual damages that they can prove. Moreover, just because sums are expended doesn't mean that they are recoverable. Legal fees are required to be reasonable, whatever that means (a variable that seems to be judge-dependent).

John Eastman
Bottom line: National Organization for Marriage wins nothing. They might recoup actual losses but there is no windfall at the end of this exercise. While NOM did raise some money off of this faux scandal, the only real winner is probably John Eastman, NOM's chairman and lately attorney of record. Economics aside, NOM has spent a good deal of time off message and distracted by their own … bullshit.
*A correction: In a prior post I suggested that Mr. Meisel had misled the IRS into providing the returns with donor information. That was incorrect. It appears that, other than claiming to be a member of the media which expedited the process, Meisel did nothing to alter the actual information that was provided. Meisel did not testify in this matter, asserting Fifth Amendment privilege. Asserting the privilege does not indicate guilt.

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