Last Thursday, Judge Emmet G. Sullivan gave the IRS 30 days to file a full explanation of the dubious computer crash and infamous missing emails—under oath. Perhaps more importantly, he assigned Magistrate Judge John Facciola to “assist the parties” in the process of finding the emails from other sources.
For those who doubt the significance and power of a federal district judge, consider the historical importance of Judge John Sirica, whose courageous actions and fearless inquiry led to the revelation of President Nixon’s role in the Watergate cover-up and subsequent resignation.
Judge Sullivan is proceeding reasonably and cautiously, as he should, but to those who know him, the hearing reveals his devotion to uncovering the truth. Judge Sullivan made it perfectly clear to the IRS and its attorneys that he expects the Agency to get its facts straight and ducks in a row. On three separate occasions, Judge Sullivan emphasized that the declaration the IRS must file within 30 days must be under oath. Within that detailed declaration, the IRS must fully answer a plethora of pertinent questions, including what happened to Lois Lerner’s emails, her hard drive, and exactly who has done what to try to find the emails.
Through its Freedom of Information Act lawsuit, Judicial Watch has been seeking the same email traffic that Congress has been seeking. But with the case in front of the conscientious Emmet G. Sullivan, Judicial Watch has immediate enforcement power.
As for the detailed sworn statement required by Judge Sullivan, an inaccuracy or a later development that proves it false could trigger any number of sanctions, including prosecution for perjury or contempt, for the officials who sign the statements. Any takers for that job?
Frankly, it would be easier for the IRS to produce all the emails than to answer all the judge’s questions. And although he was quite judicious, Judge Sullivan appeared as skeptical as most Americans of the convenient “crash” of Lois Lerner’s computer (and others).
The appointment of the Magistrate Judge, expert in electronic discovery, to “assist the parties” in finding the emails from other sources if necessary, is an extraordinary step in a FOIA case, again reflecting wide and deep distrust of the IRS’s excuses, coupled with the rank odor of a cover-up. Judge Sullivan is also open to further discovery should it prove necessary.
Judge Sullivan’s wisdom as well as his decisive, unequivocal, immediate action should be widely applauded by all interested in finding the truth. Given the proclivity and speed at which the IRS loses documents, any delay only poses further risk of never finding the truth. Judge Sullivan was wise to dictate a tight schedule.
In these times, judicial actions like this take extraordinary courage and integrity. As Bart Barnes wrote for the Washington Post upon Judge Sirica’s death: “In directing the White House to produce the [Watergate] tapes, Sirica set himself on a constitutional collision course with Nixon, who tried to invoke executive privilege and argue that the tapes were not subject to judicial scrutiny. But in a historic ruling, the U.S. Supreme Court upheld Sirica, ruling unanimously that the judiciary must have the last word in an orderly constitutional system.”
Like Judge Sullivan is doing here, and did before when he appointed a special prosecutor in the Stevens case, he is taking one appropriate step at a time. The more the IRS has to disclose, the more apparent the truth will be—one way or the other. And with the Magistrate’s supervision and assistance on one side, and the sworn declaration on the other, the IRS is between a rock and a hard place.
Emmet G. Sullivan epitomizes the importance of the independent Article III judiciary—the crucial check and balance on the Executive and Legislative branches. The hearing evidences that he holds the truth and the public interest in the highest regard—as did Judge Sirica. “Throughout his conduct of the Watergate trials, Sirica made it clear that he intended to get at the truth of what had happened, and said that in doing so, he did not intend to be bound by traditional ideas of courtroom procedures,” Mr. Barnes wrote.
Judge Sullivan may find Judge Sirica’s book handy about now, if he hasn’t already, and IRS miscreants should be shaking in their boots. Judge Sullivan is an irresistible force for the truth with the power to obtain compliance with his orders or exact extremely unpleasant consequences.
Unlike politicians, Emmet G. Sullivan doesn’t grandstand for television time, follow a political agenda, or have to “work with” the White House. His job as an independent Article III judge is simply to follow the law, which doesn’t tolerate destruction of what may be evidence of a criminal conspiracy, perjury before Congress, a gross abuse of federal power, a violation of the federal rules and his orders, and at a minimum, the Federal Records Act. Fortunately for the taxpayers, he knows how to follow the law and has the stones to do that.
Millions of American taxpayers would like to see the IRS held to the same standards of accountability and law as rest of us; Judge Sullivan is the American taxpayer who will ensure that they are.
Sidney Powell worked in the Department of Justice for 10 years and was lead counsel in more than 500 federal appeals. She served nine US Attorneys from both political parties and is the author of Licensed to Lie: Exposing Corruption in the Department of Justice.